Category: Litigation Practice

Ablitt v Mills and Reeve (A Firm) and Another: ChD 24 Oct 1995

A solicitor receiving privileged documents where there had been an obvious, error should return them. The defendant solicitors who, on their client’s instructions, reviewed privileged information sent to them in error by counsel for the other party, were restrained from continuing to act. Blackburne J said: ‘it offends elementary notions of fairness and justice’ if, by knowingly taking advantage of the mistaken delivery of privileged papers, a party to litigation, ‘although not itself told what those papers contain, can continue to have the services in the action of those who on its instructions have read all the papers and who, as a result, have a very accurate perception of just how those who act for the plaintiff view the merits of the plaintiff’s claim and of the steps, tactically and otherwise, which they are advising the plaintiff to take in pursuit of his claim’.

Blackburne J
Times 25-Oct-1995
England and Wales
Cited by:
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 19 January 2022; Ref: scu.77610

Interactive Technology Corporation Ltd v Ferster and Others: CA 28 Jun 2016

Interlocutory appeal concerning the duty of full and frank disclosure which rests upon applicants applying without notice for the grant of freezing orders and property preservation and search orders.

Moore-Bick VP CA, Tomlinson LJJ, Keenan J
[2016] EWCA Civ 614
Bailii
England and Wales

Litigation Practice

Updated: 18 January 2022; Ref: scu.566182

Reid v Cupper: 1915

A judge was entitled to make an order setting off one party’s costs in an action against the other party’s costs in a different action by reliance not on the language of Order LXV r 14, but on the old discretionary practice of the courts. The court described the courts ‘equitable jurisdiction to do what was fair’ when they were considering whether to allow one judgment to be set off against another.

Buckley J, Pickford LJ
[1915] 2 KB 147
England and Wales
Cited by:
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 January 2022; Ref: scu.216500

Cyprus Popular Bank Public Co Ltd v Vgenopoulos and Others: QBD 22 Jun 2016

The court was asked: ‘first, whether, in the case of a worldwide freezing order obtained in a foreign jurisdiction, the effect of obtaining an order under Article 38 of the Judgments Regulation (Council Regulation (EC) No. 44/2001 of 22 December 2000) (the ‘Judgments Regulation’) permitting the registration of the worldwide freezing order as a judgment of the Queen’s Bench Division of the High Court of Justice of England and Wales is that the worldwide freezing order becomes immediately effective and fully enforceable or whether it only becomes effective and fully enforceable if there is no appeal brought in respect of the registration order within two months of its being made or, if there is an appeal in that time period, on determination of that appeal; and secondly, whether ‘measures of enforcement’ (as referred to in Article 47.3 of the Judgments Regulation) includes service of the worldwide freezing order on, and/or notification of its terms to, third parties or whether ‘measures of enforcement’ are confined to processes in which the Court is involved in securing enforcement.’

Picken J
[2016] EWHC 1442 (QB)
Bailii

European, Litigation Practice

Updated: 18 January 2022; Ref: scu.565983

Singh v Singh and Others: ChD 17 Jun 2016

The claimant seeks declarations:
i) That he is the beneficial owner of 50% of the shares in Glass Express Midlands Ltd (‘Glass’). Glass has two issued shares, one of which is registered in the name of the first defendant and the other in the name of the second defendant, his wife, and
ii) That he is the beneficial owner of 45% of the shares in GEM Blinds Ltd (‘GEM’). GEM has 100 issued shares, of which 90 are registered in the name of the first defendant and the remainder in the name of Runxi Chen. The claimant seeks his declaration in relation to the former only; he does not seek to disturb Runxi Chen’s holding.
There are also claims for consequential relief.
Cooke HHJ discussed the useof covert recordings: ‘I have the direct evidence of the recordings made by the claimant. It is true to say that these must be approached with some caution, as there is always a risk that where one party knows a conversation is being recorded but the other does not the content may be manipulated with a view to drawing the party who is unaware into some statement that can be taken out of context. But there can be great value in what is said in such circumstances, where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them.’

David Cooke HHJ
[2016] EWHC 1432 (Ch)
Bailii
England and Wales

Company, Litigation Practice

Updated: 18 January 2022; Ref: scu.565854

Ghadami v Bloomfield and Others: ChD 17 Jun 2016

Proceedings against 19 defendants for damages of up to andpound;36,000,000 for conspiracy, interference with a contract or business, inducing or procuring a breach of contract and causing loss by unlawful means. The court now explained how the court had dealt with a letter received from one party, and replied to allegations of bias.

Norris J
[2016] EWHC 1448 (Ch)
Bailii
England and Wales
Citing:
See Also – Ghadami v Bloomfield and Others CA 14-Jul-2015
. .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 18 January 2022; Ref: scu.565852

Re F (Children): CA 9 Jun 2016

Appeal against order made in Hague Convention proceedings.
Munby set out the function of the Court of Appeal: ‘Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to ‘incant mechanically’ passages from the authorities, the evidence or the submissions, as if he were ‘a pilot going through the pre-flight checklist.’
The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski . . It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in ‘narrow textual analysis’.’

Sir James Munby P FD, Arden LJ
[2016] EWCA Civ 546
Bailii
England and Wales
Cited by:
Applied – WM v HM FC 9-May-2017
. .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 17 January 2022; Ref: scu.565359

ADM Asia-Pacific Trading Pte Ltd v Toepfer International Asia Pte Ltd and Another: ComC 20 Jun 2016

ADM applied for a final anti-suit injunction to restrain the defendant from continuing proceedings against ADM in Indonesia on the grounds that those proceedings are in breach of a FOSFA arbitration agreement between the parties.

Phillips J
[2016] EWHC 1427 (Comm)
Bailii

Arbitration, Litigation Practice

Updated: 17 January 2022; Ref: scu.565734

Compagnie Noga D’Importation et d’Exportation SA v Abacha: ComC 5 Mar 2001

A party asked the court to reconsider its judgment after it had been handed down saying that the judge had acted in error. Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order’. He continued: ‘Provided that the formula of ‘exceptional circumstances’ is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. ‘Strong reasons’ is perhaps an acceptable alternative to ‘exceptional circumstances’. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.’

Rix LJ
[2001] 3 All ER 513, [2001] CP Rep 93, [2001] EWHC QB B1
England and Wales
Cited by:
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 January 2022; Ref: scu.545670

Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa: QBD 3 May 2001

The court had handed to the parties a draft judgement, but one party then asked the judge to reconsider it.
Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order’. He continued: ‘Provided that the formula of ‘exceptional circumstances’ is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. ‘Strong reasons’ is perhaps an acceptable alternative to ‘exceptional circumstances’. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.’

Rix LJ
[2001] 3 All ER 513, [2001] EWHC QB B1, [2001] CP Rep 93
Bailii
England and Wales
Citing:
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .

Cited by:
Appeal from – Compagnie Noga D’Importation Et D’Exportation Sa v Abacha and others CA 23-Jul-2003
. .
Cited – McKeown v British Horseracing Authority Admn 12-Mar-2010
The judge had been asked to revise his draft judgment. The court set out the circumstances under which a draft judgment might be amended and why in this case he had rejected the request save as to clerical errors. . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 January 2022; Ref: scu.241555

Ras Al Khaimah Investment Authority and Others v Bestfort Development Llp and Others: CA 19 Jul 2017

The main question of law raised by this appeal is whether an applicant for a worldwide freezing order has to show that (1) it is likely that a defendant has assets that will be caught by the order or (2) a good arguable case that a defendant has such assets or (3) grounds for believing that a defendant has (or is likely to have) such assets or (4) merely that the defendant is wealthy and must therefore have assets somewhere.

Longmore, Henderson, LJJ, Sir Patrick Elias
[2017] EWCA Civ 1014, [2017] WLR(D) 489
Bailii, WLRD
England and Wales

Litigation Practice

Updated: 17 January 2022; Ref: scu.591190

Arcadia Group Ltd and Others v Telegraph Media Group Ltd: QBD 23 Jan 2019

Warby J
[2019] EWHC 96 (QB)
Bailii
England and Wales
Citing:
See Also – ABC and Others v Telegraph Media Group Ltd CA 23-Oct-2018
Human Rights balance in favour of Interim order
The Claimants, now Appellants sought an injunction to prevent the Defendant, from publishing what they say is confidential information about them which was disclosed in breach of confidence.
Held: The claimant’s appeal succeeded. The court . .

Cited by:
See Also – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 17 January 2022; Ref: scu.632715

Singh v The Charity Commission and Others: ChD 22 Dec 2016

The court considered the circumstances under which a withdrawal of a case might be challenged: ‘(1) the rules do not prescribe any particular test for permitting discontinuance or, for that matter, for setting aside a notice of discontinuance; (2) a claimant’s desire to bring proceedings to an end where there is no counterclaim should be respected, not least because a claimant cannot be compelled to prosecute a claim; (3) the court has an inherent discretion including as to the timing of any discontinuance; (4) as with any judicial discretion, it may only be exercised in accordance with principle but is otherwise unfettered; (5) the court’s objective, both substantively and procedurally, is to achieve a just result according to law and to limit costs to those proportionate to the case; (6) the consideration required of the court is of all the circumstances and not merely those concerning only one party or only some of the parties; (7) when considering all the circumstances, conduct, particularly that aimed at abusing or frustrating the court’s process or securing an unjust tactical advantage, is relevant and may well be important, but it is by no means conclusive; and, (8) when considering all the circumstances, the court should also have in mind its realistic options, which may include imposing conditions while the proceedings remain extant.’

Barker QC HHJ
[2016] EWHC B33 (Ch)
Bailii
England and Wales
Cited by:
Approved – Stati and Others v The Republic of Kazakhstan CA 10-Aug-2018
Appeal from an order setting aside a notice of discontinuance filed by the Appellants as claimants in proceedings under section 101 of the Arbitration Act 1996 to enforce a New York Convention award. He directed that the allegations made by the . .
Cited – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Charity, Litigation Practice

Updated: 17 January 2022; Ref: scu.577846

Takhar v Gracefield Developments Ltd and Others: ChD 23 Oct 2020

The Claimant seeks to set aside a judgment obtained against her by the Defendants in 2010 in an earlier action – allegation that new evidence of forgery of signature.

Mr Steven Gasztowicz QC
[2020] EWHC 2791 (Ch)
Bailii
England and Wales
Citing:
See Also – Takhar v Gracefield Developments Ltd and Others ChD 6-May-2015
The claimant alleged that the defendant had obtained its judgment in earlier proceedings by fraud. The defendant now applied for the claim to be dismissed as an abuse of process. . .
See Also – Takhar v Gracefield Developments Ltd and Others CA 21-Mar-2017
. .
See Also – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
Whether to set aside judgment said to have been obtained fraudulently . .

Cited by:
See Also – Takhar v Gracefield Developments Ltd and Others (Consequential Orders) ChD 11-Nov-2020
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 January 2022; Ref: scu.655203

Takhar v Gracefield Developments Ltd and Others: ChD 6 May 2015

The claimant alleged that the defendant had obtained its judgment in earlier proceedings by fraud. The defendant now applied for the claim to be dismissed as an abuse of process.

Newey J
[2015] EWHC 1276 (Ch)
Bailii
England and Wales
Cited by:
Appeal from – Takhar v Gracefield Developments Ltd and Others CA 21-Mar-2017
. .
At first Instance – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
Whether to set aside judgment said to have been obtained fraudulently . .
See Also – Takhar v Gracefield Developments Ltd and Others ChD 23-Oct-2020
The Claimant seeks to set aside a judgment obtained against her by the Defendants in 2010 in an earlier action – allegation that new evidence of forgery of signature. . .
See Also – Takhar v Gracefield Developments Ltd and Others (Consequential Orders) ChD 11-Nov-2020
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 January 2022; Ref: scu.546293

Takhar v Gracefield Developments Ltd and Others: CA 21 Mar 2017

Patten, King, Simon LJ j
[2017] EWCA Civ 147, [2017] WLR(D) 194
Bailii, WLRD
England and Wales
Citing:
Appeal from – Takhar v Gracefield Developments Ltd and Others ChD 6-May-2015
The claimant alleged that the defendant had obtained its judgment in earlier proceedings by fraud. The defendant now applied for the claim to be dismissed as an abuse of process. . .

Cited by:
Appeal from – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
Whether to set aside judgment said to have been obtained fraudulently . .
See Also – Takhar v Gracefield Developments Ltd and Others ChD 23-Oct-2020
The Claimant seeks to set aside a judgment obtained against her by the Defendants in 2010 in an earlier action – allegation that new evidence of forgery of signature. . .
See Also – Takhar v Gracefield Developments Ltd and Others (Consequential Orders) ChD 11-Nov-2020
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 January 2022; Ref: scu.581079

Handley and Another v Lake Jackson Solicitors (A Firm) and Others: CA 24 May 2016

‘Questions have arisen as to the correct destination for an appeal in circumstances where (a) there has been an appeal to the county court which has either been determined by a judgment of the court on its merits or withdrawn; (b) the county court has made, or declined to make, an order for costs in respect of the appeal; and (c) what is sought to be appealed is (or includes) the order in respect of those costs. Such an order may be made at the same time as the judge delivers judgment; or later, either at a further oral hearing or in writing after written submissions. ‘

Moore-Bick VP CA, Christopher Clarke LJJ
[2016] EWCA Civ 465
Bailii
England and Wales

Litigation Practice

Updated: 16 January 2022; Ref: scu.564689

Woodhouse v Consignia Plc; Steliou v Compton: CA 7 Mar 2002

The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her application to lift the stay was refused, and she appealed.
Held: The automatic stay under Part 51 applied the court rules identified in CPR 3.9, and accordingly that rule must be read in detail along with Part 51, when dealing with an application to lift the stay. The court should also recognise that a stay risked infringing a party’s Article 6 Human Rights.
Brooke LJ referred to the public interest in the efficient conduct of litigation and continued: ‘But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson and Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do’.
Brooke LJ gave guidance as to the manner in which a court should approach the task of applying CPR 3.9 in the context of deciding whether to lift an automatic stay: ‘This rule is a good example of the way in which the draftsman of the Civil Procedure Rules has sometimes endeavoured to set out in a codified form the various matters which the court may have to take into account when deciding how to exercise its discretion in a context with which it will be all too familiar. One of the great demerits of the former procedural regimes was that simple rules got barnacled with case-law. Under the new regime the draftsman has sought to dispense with the need for litigants to be familiar with judge-made case-law by drawing into one place the most common of the considerations a court must take into account when deciding whether a litigant should be granted relief from a sanction imposed on him.
The circumstances in which a court may be asked to make a decision of this kind are infinitely varied. This is why the rule instructs the court to consider all the circumstances of the particular case, including the nine listed items. On the other hand, the rule would lose much of its praiseworthy purpose of encouraging structured decision-making if courts did not consciously go through the exercise of considering all the items on the list when determining how, on balance, it should exercise its discretion. Provided it does so, and in this way ensures that the risk of omitting any material consideration is minimised, it is most unlikely that an appeal court will interfere with its decision. If it fails to do so, an appeal court may not be able to detect that it has taken all material matters into account, and it may be obliged to exercise its discretion afresh for this reason.’

Lord Justice Brooke, Lord Justice Laws, And, Lord Justice Dyson
[2002] 1 WLR 2558, [2002] 2 All ER 737, Times 05-Apr-2002, Gazette 18-Apr-2002, [2002] EWCA Civ 275, [2002] All ER (D) 79
Bailii
Civil Procedure Rules Part 51
England and Wales
Citing:
Explained – La Baguette Ltd and Others v Audergon CA 23-Jan-2002
Judges should be careful not to create judicial checklists which added a gloss to the civil procedure rules. The claimant’s action had been stayed automatically for not having progressed for a year. The judge applied the checklist in Annodeus to . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Tinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .

Cited by:
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Flaxman-Binns v Lincolnshire County Council CA 5-Apr-2004
When looking at whether to lift a stay on an action imposed before the coming into effect of the Civil Procedure Rules, the court should look at each of the items listed in the rule, and should then stand back and look at the overall needs of . .
Cited – R C Residuals Ltd (formerly Regent Chemicals Ltd) v Linton Fuel Oils Ltd CA 2-May-2002
The applicant had failed to comply with an unless order, delivering his expert evidence some 20 minutes late. The evidence had not been allowed. They appealed.
Held: The claim was re-instated. This was not the first occasion of default. . .
Cited – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Cited – Jordan, Re for Judicial Review SC 6-Mar-2019
(Northern Ireland) The deceased had been shot by a member of the Royal Ulster Constabulary in 1992. There had been inquests in 1995 and 2012, but proceedings were again brought alleging delay. The Court of Appeal had ordered a further stay of . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Human Rights, Litigation Practice

Leading Case

Updated: 16 January 2022; Ref: scu.167729

George Bray v Ford: HL 1896

The Court ordered a new trial on the ground of there having been a misdirection of the jury.

[1896] AC 44
England and Wales
Cited by:
Cited – Regina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 January 2022; Ref: scu.227951

AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others: CA 21 Dec 2005

The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that standard was flexible, and varied according to the seriousness of the allegation. The only misdirection by the tribunal had been favourable to the applicant, and the appeal was dismissed.
Rix LJ said: ‘Although there remains a distinction in principle between the civil standard and the criminal standard, the practical application of the flexible approach demonstrated in the authorities means that they are likely in certain contexts to produce the same or similar results.’ and ‘Although there is a single standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’

The Master of the Rolls Lord Justice Rix Lord Justice Richards
[2005] EWCA Civ 1605, Times 12-Jan-2006, [2006] 4 All ER 194, [2006] 2 WLR 850, [2006] QB 468, [2006] MHLR 59, (2006) 88 BMLR 59
Bailii
Mental Health Act 1983 37 41 73
England and Wales
Citing:
Cited – Hutchison Reid v Secretary Of State For Scotland and Another HL 5-Feb-1998
(Scotland) A detention in hospital which was capable of preventing the deterioration of a psychopathic disorder in a patient was sufficient to bring his detention within the requirement for treatment which might alleviate a condition, which phrase . .
Cited – P, Regina (on the Application of) v Mental Health Review Tribunal for East Midlands and North East Regions CA 16-Apr-2002
The issue before the tribunal was whether the disorder, if established, had resulted in abnormally aggressive or seriously irresponsible conduct in the past and there was a real risk that, if treatment in hospital were discontinued, it would do so . .
Cited – Regina (on the application of H) v Mental Health Review Tribunal, North and East London Region CA 28-Mar-2001
The section placed the burden upon a specially restricted patient to prove that he was not suffering from a mental disorder of a nature or degree requiring him to be detained, before the Tribunal could order his release. This shifting of the burden . .
Cited – Addington v Texas 30-Apr-1979
(US Supreme Court) To commit an individual to a mental institution in civil proceedings, the state was required by the ‘due process’ clause of the US Constitution to prove by clear and convincing evidence the statutory preconditions to commitment. . .
Appeal from – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Cited – Bater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The court asked what was required to displace the presumption that the husband, the older of the two, had . .
Cited – Blyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – In re Bramblevale Ltd 1970
For reasons of policy or pragmatism, the actual criminal standard of proof may be used in civil proceedings such as contempt of court. Contempt of court is a criminal offence. Accordingly, the burden of proving that the defendant is in contempt . .
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – B v Responsible Medical Officer, Broadmoor Hospital, Dr SS and others Admn 8-Sep-2005
Compulsory administration of treatment to detained mental patient. The court considered, but left open, the relationship between the ‘convincingly shown’ standard of proof, and the decision of the House of Lords in In re H as to the civil standard . .
Cited – HL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Regina on the Application of Brooks v The Parole Board CA 10-Feb-2004
The court had to decide the extent to which the Parole Board could rely on hearsay evidence in a case in which a discretionary life prisoner’s licence had been revoked. The evidence was crucial to the issue of risk.
Held: (majority) The . .
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Cited – Regina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
Cited – Hutchison Reid v The United Kingdom ECHR 20-Feb-2003
The applicant had been detained over many years after committing offences of a sexual and violent nature. After one release he reoffended and was re-detained after completing his sentence. He challenged the basis of his continued detention.
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .

Cited by:
Cited – B and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Approved – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – Bento v The Chief Constable of Bedfordshire Police QBD 1-Jun-2012
The claimant had been convicted of the murder of his girlfriend. On his acquittal on appeal, the police criticised the CPS decision not to retry the claimant, in effect, the claimant now said, continuing the accusation against him, and so defaming . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Leading Case

Updated: 16 January 2022; Ref: scu.236606

Higginson Securities (Developments) Ltd and Another v Hodson: TCC 26 Apr 2012

Application for a stay of proceedings to enable without prejudice meetings to occur raising issues about the need for the parties always to have regard to the overriding objective in relation to the application of the practice relating to the Pre-Action Protocol.

Mr Justice Akenheadmr Justice Akenhead
[2012] EWHC 1052 (TCC), [2012] TCLR 6, [2012] BLR 321,
Bailii
England and Wales

Construction, Litigation Practice

Updated: 16 January 2022; Ref: scu.453020

Ansol Ltd v Taylor Joynson Garrett (a Firm) and Others: ChD 15 Jan 2002

Counsel who fail to abide by the time limits set down clearly in the rules for the delivery of skeleton arguments must expect to suffer appropriate sanctions. The limits enabled judges to carry out effective pre-reading to make the hearing shorter and more effective. It reduced the costs to the partes.

Sir Andrew Morritt, Vice-Chancellor
Times 30-Jan-2002
Chancery Guide (Civil Procedure Autumn 2001, volume 2, paragraph 1-60)
England and Wales

Litigation Practice

Updated: 15 January 2022; Ref: scu.167480

C Plc and W v P and Secretary of State for the Home Office and the Attorney General: ChD 26 May 2006

The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful images of children were found. The searching officer asked the court for directions as to what to do.
Held: The privilege against self incrimination applied to statements and written material made or created by the defendant under compulsion. It did not apply to self-standing evidence such as the material in this case.

Evans-Lombe J
Times 08-Jun-2006, [2006] EWHC 1226 (Ch), [2007] 3 WLR 437
Bailii
Civil Procedure Act 1997 7, Civil Evidence Act 1968 14, Police and Criminal Evidence Act 1984 78
England and Wales
Citing:
Cited – Rank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
Cited – Regina v Hertfordshire County Council ex parte Green Environmental Industries Limited, Moynihan CA 9-Oct-1997
There was no protection against self-incrimination where information was properly required by the Waste Regulation Authority to carry out its duties. . .
Cited – O Ltd v Z ChD 23-Feb-2005
The court was asked whether a search under a court order of a former employee’s computer for materials alleged to have been taken, which discovered material possession of which itself was a crime, infringed the defendant’s rights against self . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – 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 – Warman International Ltd and Others v Envirotech Australia Pty Ltd and Others 1986
(Australia High Court) The court considered an application that the privilege against self incrimination be allowed to prevent a requirement to produce documents at court under a sub-poena: ‘Production is to the Court. Unless and until the contents . .
Cited – Downie and Others v Coe and Others (a Firm) CA 28-Nov-1997
A claim to a right of a witness against self incrimination must be made by that person in person on oath though substantiation elsewhere. . .
Cited – Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd 1939
A company is to have the benefit of protection against self incrimination just as much as an individual. A court is not bound without more, by a claim to the privilege by a party to litigation. . .
Cited – Attorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .
Cited – Regina v Kearns CACD 22-Mar-2002
The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide . .
Cited – Regina v Khan (Attorney-General’s Reference No 7 of 2000); Same v Saunders (AG Ref 10 of 2000); Same v Paul (AG Ref 9 of 2000); Same v Wakelin (AG Ref 8 of 2000) CACD 15-Jun-2000
Robbery committed on public transport, against young persons, will lead to a custodial sentence, save in wholly exceptional circumstances. There is a need to provide deterrence, for what has become a common crime. Sentences of between twelve and . .
Cited – Thompson Newspapers Ltd v Director of Investigation and Research 1990
(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination.
Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, . .
Cited – X and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
Cited – A T and T Istel Ltd v Tully HL 9-Sep-1992
The second plaintff had agreed to supply computer systems to a health authority. New owners of the company discovered allegations that the contract had been operated fraudulently. An order had been obtained for production of documents, but the order . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Regina v Boyes 27-May-1861
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he . .
Cited – Re Arrows Ltd No 4 HL 1995
The Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 on the Director of the Serious Fraud Office undertaking that the transcripts would . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – L v United Kingdom ECHR 2000
The court coinsidered a claim for the privilege against self-incrimination: ‘As held in Saunders v. United Kingdom . . the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and . .

Cited by:
Applied – Malik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
Cited – Regina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Leading Case

Updated: 15 January 2022; Ref: scu.242224

Blacker (The Lord Harley) v The Law Society: QBD 27 Apr 2016

The claimant solicitor sought the release to him of six closed complaints files. The court now heard preliminary applications.
Held: The claim was struck out.

Fraser J
[2016] EWHC 947 (QB)
Bailii
Freedom of Information Act 2000
England and Wales

Legal Professions, Litigation Practice, Information

Updated: 14 January 2022; Ref: scu.563184

Lester v Archdale: 26 Feb 1846

Under the orders of May 1845, in a case where there are several Defendants, any one of them may move to dismiss for want of prosecution at the expiration of four weeks after his answer is sufficient, if the Plaintiff has since taken no step, and that, although his co-defendants may not have put in their answer ; but an order to amend, obtained and served after the notice of motion and before its hearing, is, under ordinary circumstances, an answer to the motion to dismiss, but the Plaintiff having, by such means, intercepted the Defendant’s right, must pay the costs of the motion.

[1846] EngR 449, (1845-1846) 9 Beav 156, (1846) 50 ER 303
Commonlii
England and Wales

Litigation Practice

Updated: 14 January 2022; Ref: scu.302344

The High Commissioner for Pakistan In The United Kingdom v National Westminster Bank Plc and Others: ChD 16 Jan 2015

The parties disputed management of a fund subject to a legal stalemate since 1948, and now worth some andpound;35 million pounds. Application to set aside discontinuance without permission.
Held: If, upon such an application, the Court is persuaded that the discontinuance was an abuse of the Court’s process, it may set it aside and impose terms. The discontinuance was found to be an improper attempt to extract the claimant state from the consequences of an unequivocal waiver of immunity.

Henderson J
[2015] EWHC 55 (Ch)
Bailii
England and Wales
Cited by:
Cited – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 13 January 2022; Ref: scu.541490

Castanho v Brown and Root (UK) Ltd: HL 1981

A claim was made for an anti-suit injunction.
Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The court should assume that an injunction will be obeyed.
Lord Scarman commented Lord Diplock’s analysis in the Siskina case: ‘No doubt, in practice, most cases fall within one or other of these two classes. But the width and flexibility of equity are not to be undermined by categorisation. Caution in the exercise of the jurisdiction is certainly needed: but the way in which the judges have expressed themselves from 1821 onwards amply supports the view for which the defendants contend that the injunction can be granted against a party properly before the Court, where it is appropriate to avoid injustice.’

Lord Scarman
[1981] AC 557
England and Wales
Cited by:
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 January 2022; Ref: scu.182496

PJS v News Group Newspapers Ltd: CA 22 Jan 2016

The claimants sought to restrain newspapers from publishing their identities in the context of allegations of sexual misconduct. They now appealed against rejection of their request for an interim injunction.
Held: The appeal succeeded.

Jackson, King LJJ
[2016] EWCA Civ 100
Bailii
England and Wales
Cited by:
See Also – PJS v News Group Newspapers Ltd CA 18-Apr-2016
The claimant celebrity had obtained an injunction restraining the defendant newspaper from publishing details of his extra marital activities. The newspaper appealed, saying that the information had already been printed abroad, and had been widely . .
At CA – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 12 January 2022; Ref: scu.561120

Gentry v Miller and Another: CA 9 Mar 2016

This appeal raises the question of how the court should approach the grant of relief from sanctions in a case where the defaulting party has delayed in applying for relief but is able to point to evidence that enables it to allege that the claim is a fraudulent one.

Lewison, Beatson, Vos LJJ
[2016] EWCA Civ 141, [2016] WLR(D) 136
Bailii, WLRD
Civil Procedure Rules
England and Wales

Civil Procedure Rules, Litigation Practice

Updated: 12 January 2022; Ref: scu.561123

Oak Cash and Carry Ltd v British Gas Trading Ltd: CA 15 Mar 2016

Appeal by a defendant, whose defence had been struck out for non-compliance with court orders, against the refusal of relief from that sanction pursuant to Civil Procedure Rule 3.9. The principal issues in this appeal were:
i) whether, in assessing the seriousness of non-compliance with an ‘unless’ order, the court should have regard to the original breach which gave rise to the ‘unless’ order;
ii) the effect of delay in applying for relief.

Jackson, King, Lindblom LJJ
[2016] EWCA Civ 153
Bailii
Civil Procedure Rules 1998 3.9
England and Wales

Litigation Practice, Civil Procedure Rules

Updated: 12 January 2022; Ref: scu.561126

Albesher v Ryan and Others: ComC 15 Mar 2016

Application by the second defendant (‘Ryan Corp’) to set aside a default judgment. The issues which arise are whether Ryan Corp’s proposed defence has a real prospect of success, and whether it is appropriate to exercise discretion in favour of Ryan Corp.

Walker J
[2016] EWHC 541 (Comm)
Bailii
England and Wales

Litigation Practice, Contract

Updated: 12 January 2022; Ref: scu.561039

The National Crime Agency v Perry and Others: QBD 12 Nov 2014

The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an Agency lawyer said that since she had referred to legal advice from Israel, that should now be disclosed.
Held: The statement went no further than to say that adice had been sought. That was not enough to justify the setting aside of legal privilege. There had been no waiver.

Wilkie J
[2014] EWHC 3759 (QB)
Bailii
England and Wales
Citing:
Applied – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 January 2022; Ref: scu.538712

Beasley v Alexander: QBD 9 Oct 2012

The parties had disputed liability for personal injuries in a road traffic accident. The court had held the defendant liable, but held over the assessment of damages. The defendant sought to refer to the fact of his offer of settlement when assessing the costs of the liability trial.
Held: CPR r 36.13(2) did not permit a court to be told of a Part 36 offer and consequently go on to deal with the question of costs at the conclusion of the first part of a split trial: ‘Until it was known how the payment compared with the final judgment no decision as to costs could be made. It was important for the court to know that there had been a payment into court because it would then know that no order as to costs should be made at that stage. Equally it would be important for a court to know that no payment in had been made because then it could exercise its discretion as to the costs of the liability trial in that knowledge. I should proceed on the basis that when the present Rule 36.13 was formulated the Civil Procedure Rule Committee had the decision in HSS in mind.’
and ‘ as to the construction of the words in Rule 36.13(2) ‘until the case has been decided’ . . I am satisfied that the words have a clear meaning. It is clear that ‘the case’ is used in the sense of ‘the action’ or ‘the proceedings’. The reference to ‘the case’ cannot be construed as referring to part of a case.’

Sir Raymond Jack
[2012] EWHC 2715 (QB), [2012] WLR (D) 272
Bailii
Civil Procedure Rules 36.13(2)
England and Wales
Citing:
Applied – HSS Hire Services Group Plc v BMB Builders Merchants Ltd and Another CA 24-May-2005
The claimant licensee alleged that the license contract had been repudiated by the defendant licensor. The claimant succeeded at the trial of liability. The defendant had made a payment into court. The judge was told of the payment but not of the . .
Cited – Garratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
Cited – Ted Baker Plc and Others v Axa Insurance Uk Plc and Others ComC 29-Jun-2012
The court had determined several preliminary issues in favour of the claimants, but issues as to liability remained. The court considered whether and on what basis it was proper now to make an order for costs.
Held: Eder J said: ‘As to the . .
Liability – Beasley v Alexander QBD 27-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 12 January 2022; Ref: scu.464786

Ferdinand v MGN Limited: QBD 29 Sep 2011

The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and at the time of the incidents related, led a wilder social life, but said that he had since settled down.
Held: The claim failed. The evidence of earlier behaviour was a matter of proper public interest, and the claimant himself in his own book had made much of it. That did not mean that he had abandoned all rights of privacy: ‘In the nature of things, the subject matter of the article is private information which is likely to have caused even a phlegmatic character some embarrassment and, as such, this supports the existence of a reasonable expectation of privacy.’
Nicol J continued: ‘the balancing competing rights between Article 8 and Article 10 called for an intense focus on the comparative importance of the two rights in the specific context of the particular case.’ In this particular case, the claimant had met up with the woman after the time when he was proclaiming himself a reformed character, and had managed a public relations effort to project an image consistent with his later standing as captain of the England football team. Such an appointment might itself require better standards of the appointee, and his appointment was as a direct result of the prior captain’s own failings. The balancing exercise in this particular case fell to the defendant’s benefit.

Nicol J
[2011] EWHC 2454 (QB)
Bailii
European Convention on Human Rights 10 8
England and Wales
Citing:
Cited – A v B plc and Another (Flitcroft v MGN Ltd) CA 11-Mar-2002
A newspaper company appealed against an order preventing it naming a footballer who, they claimed, had been unfaithful to his wife.
Held: There remains a distinction between the right of privacy which attaches to sexual activities within and . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Hutcheson (Formerly Known As ‘KGM’) v News Group Newspapers Ltd and Others CA 19-Jul-2011
The claimant appealed against the refusal of a privacy order, protecting his identity in his claim.
Held: The appeal was refused. That Article 8 was ‘engaged’ was not conclusive of the question whether the claimant enjoyed a reasonable . .
Cited – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Cited – KGM v News Group Newspapers Ltd and Others QBD 1-Dec-2010
The claimant had obtained an interim injunction to prevent the defendant newspapers from publishing stories about him, together with an order protecting his identity within the proceedings. The defendants now sought to have the injunctions set . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – Terry (previously LNS) v Persons Unknown QBD 29-Jan-2010
The claimant (then known as LNS) had obtained an injunction to restrain publication of private materials.
Held: There was insufficient material to found an action in confidence or privacy. An applicant was unlikely to succeed either at an . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Theakston v MGN Ltd QBD 14-Feb-2002
The claimant, a celebrity sought to restrain publication by the defendant of information about his sex life, consisting of pictures of him in a brothel. The court considered the test for the grant of an injunction to restrain publication under the . .

Cited by:
Cited – McClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Human Rights

Updated: 12 January 2022; Ref: scu.444825

Patel v Unite The Union: QBD 27 Jan 2012

The claimant, wanting to bring defamation proceedings in respect of postings on the defendant’s internet forum, sought orders for disclosure of the identities of the posters. The defendants said that the forum having been taken down, they were now unable to provide any further information.
Held: The defendant had made promises to preserve the data, and its replies were very unsatisfactory. An order would be made for joint inspections with arrangements to protect the rights of third parties.

Richard Parkes QC
[2012] EWHC 92 (QB)
Bailii
Protection from Harassment Act 1997
England and Wales
Citing:
Cited – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .

Lists of cited by and citing cases may be incomplete.

Defamation, Information, Litigation Practice

Updated: 12 January 2022; Ref: scu.450509

CTB v News Group Newspapers Ltd and Another (3): QBD 23 May 2011

The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. The purposes of such a privacy order included also protecting the claimant and his family from harassment. Though some of the purpose of the order might have been lost, if ‘the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.’

Tugendhat J
[2011] EWHC 1334 (QB)
Bailii
England and Wales
Citing:
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
See Also – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Cited by:
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 12 January 2022; Ref: scu.440195

DFT v TFD: QBD 27 Sep 2010

The court heard an application for an injunction to restrain publication of material relating to the claimant’s private and sexual life.
Held: An injunction restraining publication and identification, but not an order restraining publication of the order itself was made. Sharp J said: ‘[Counsel for the Claimant] submits that looking at the matter from the perspective of Article 8, there is a plain interference with the applicant’s right to respect for privacy and family life which cannot be justified under Article 8(2).
As to the Article 10 rights of the respondent, the evidence before me currently suggests the applicant is likely to establish at trial that disclosure of the information (whether to the media or generally) would be the fulfilment of a blackmailing threat. I accept [Counsel for the Claimant]’s submission that the expression rights of blackmailers are extremely weak (if they are engaged at all)
Any provisions derogating from the principles of open justice and the provisions of the CPR must be necessary on the facts of the case . .
[Counsel for the Claimant] submits [that the anonymity order] should remain in place until trial or further order. Anonymity orders have been considered twice by the Supreme Court in 2010; and he has referred me to the judgment given by Lord Rodger in Secretary of State for the Home Department v AP (No. 2) [2010] UKSC 26 where he summarises the test to be applied as follows: ‘the Court must ask itself ‘whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [AP] to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.’
He submits the answer to this question in the present case is plainly ‘no’. In particular, he says the publication of the applicant’s name would lead to large scale media intrusion which would, in itself, constitute a very substantial intrusion into his private and family life and would be very distressing for him and his family. There is in addition a very strong public interest in the prevention of blackmail and in encouraging victims of blackmail not to give in. It would be contrary to that public interest to publish the fact that the applicant was being blackmailed. As a result, all that any report of the proceedings could do would be to identify the applicant as the person who has obtained an injunction . .
I also consider [Counsel for the Claimant] is right when he says the blackmail element of this case brings extremely strong public interest considerations into play. The fact that the applicant has been blackmailed should not be published . . .’

Sharp J
[2010] EWHC 2335 (QB)
Bailii
European Convention on Human Rights 8 10, Theft Act 1968 21
England and Wales
Cited by:
Cited – AMM v HXW QBD 7-Oct-2010
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – NNN v Ryan and Others QBD 20-Mar-2013
The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 12 January 2022; Ref: scu.424883

AMM v HXW: QBD 7 Oct 2010

The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication would cause damage to the claimant’s private life, damages would not be an adequate remedy, and the defendant had not sought to argue any proper public interest in the material. The court considered its alternatives where the it was suggested that the defendant may have been guilty of blackmail, but where, as here, there had already been limited public disclosure. As in TFD at this interim stage it was not necessary to consider whether the defendant had the right to publish what she threatened.

Tugendhat J
[2010] EWHC 2457 (QB)
Bailii
Theft Act 1968 21
England and Wales
Citing:
Cited – Duchess of Argyll v Duke of Argyll ChD 1967
An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of . .
Cited – Stephens v Avery ChD 1988
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – DFT v TFD QBD 27-Sep-2010
The court heard an application for an injunction to restrain publication of material relating to the claimant’s private and sexual life.
Held: An injunction restraining publication and identification, but not an order restraining publication . .
Cited – Thorne v Motor Trade Association HL 1937
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the . .
Cited – Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
Cited – In re an Inquiry Under The Company Securities (Insider Dealing) Act 1985 HL 1988
The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . . .
Cited – Secretary of State for The Home Department v AP (No. 2) SC 23-Jun-2010
The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .

Cited by:
Cited – NNN v Ryan and Others QBD 20-Mar-2013
The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .

Lists of cited by and citing cases may be incomplete.

Media, Family, Litigation Practice

Updated: 12 January 2022; Ref: scu.424970

CTB v News Group Newspapers Ltd and Thomas (2): QBD 23 May 2011

The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. Additionally the claimant said that given that the defendant claimed to have clean hands in the matter, it should provide disclosure of dicuments which might support or undermine that claim.
Held: The applications failed. That the defendant still wanted to pubish the story was itself evidence that there remained some privacy to protect, and: ‘the right question for me to ask . . is whether there is a solid reason why the Claimant’s identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. The answer is as yet in the negative. They would be engulfed in a cruel and destructive media frenzy. Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so.’
The defendant having reduced its ‘clean hands’ claim to one of there being no evidence to contradict it, detailed disclosure remained unnecessary at this stage. The court also bore in mind that such a search might reveal criminal attempts to undermine the court order, and this would require consideration of the laws against requiring self-incrimination.
Eady considered the argument that the information was already in the public domain: ‘one reason why it can be important to distinguish between the was the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth of falsity of the allegations in question can often be irrelevant: see e.g. McKennitt v Ash [2008] QB 73 . . It is fairly obvious that wall-to-wall excoriation in national newspapers . . is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment . . For so long as the court is in a position to prevent some of that intrusion and distress, depending on individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down.’

Eady J
[2011] EWHC 1326 (QB)
Bailii
England and Wales
Citing:
Cited – Cobra Golf Inc and Another v Rata and Others ChD 11-Oct-1996
An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact . .
Cited – Dendron Gmbh and others v Regents of University of California and Another PatC 23-Mar-2004
The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See Also – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Cited by:
Cited – CTB v News Group Newspapers Ltd and Another (3) QBD 23-May-2011
The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Hutcheson (Formerly Known As ‘KGM’) v News Group Newspapers Ltd and Others CA 19-Jul-2011
The claimant appealed against the refusal of a privacy order, protecting his identity in his claim.
Held: The appeal was refused. That Article 8 was ‘engaged’ was not conclusive of the question whether the claimant enjoyed a reasonable . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Litigation Practice

Updated: 12 January 2022; Ref: scu.440085

Community Care North East (A Partnership) v Durham County Council: QBD 29 Apr 2010

The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt unable to give effect to the order.
Held: The court did not have power to vary the order as requested. A schedule to a Tomlin Order sets out an agreement between the parties of the terms of settlement. Once the parties have entered into an agreement the ability to set aside or vary that agreement depends on there being a remedy in relation to that contract. Otherwise the court is only concerned with the meaning of the agreement in the schedule and this depends on normal principles.
The provisions of the CPR have no direct application to the terms of a schedule to a Tomlin Order.
Nor should cases relating to consent orders apply: ‘when it comes to a Tomlin Order, I can see no justification for a general power for the court to vary the terms of the agreement set out in the schedule on the basis that there has been a material or unforeseen change in circumstances after the order was made which might undermine or invalidate the basis of the agreement, unless that would give rise to a power to do so as a matter of the law of contract.’
Even if the court had such a power it should not be exercised in this case. There were no new circumstances, and the order had envisaged a possible re-run but with no award after it. However the court did declare that the schedule did not prevent the council exercising any other powers it had to terminate the procurement process.

Ramsey J
[2010] EWHC 959 (QB), [2012] 1 WLR 338
Bailii
England and Wales
Citing:
Cited – Practice Note 2-Jan-1927
Tomlin J set out the appropriate practice on attaching a private schedule to an order made by consent. The schedule records the terms of the settlement agreed between the parties but which terms are not ordered by the court and are not enforceable . .
Cited – Dashwood v Dashwood 1-Nov-1927
dashwood_dashwood1927
Tomlin J set out the the practice on making an order such as would keep the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement.
Held: A provision in the order which required one party to . .
Cited – Croft House Care Ltd and Others v Durham County Council TCC 27-Apr-2010
. .
Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
See also – Croft House Care Ltd and Others v Durham County Council TCC 27-Apr-2010
. .
Cited – Weston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
Cited – Cristel v Cristel CA 1951
H and W settled a dispute with an agreement for possession of the matrimonial home to be suspended until H provided suitable alternative accommodation. The order gave liberty to apply. H wished to vary the order as to the type of accommodation which . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Sirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
Cited – Embassy Limousines and Services v Parliament Europeen ECFI 17-Dec-1998
ECJ 1 Procedure – Reference to the Court of Justice on the basis of an arbitration clause – Condition – Existence of a valid contract – Contract governed by Directive 92/50 requiring a written agreement – . .
Cited – Metalmeccanica Fracasso SpA, Leitschutz Handels- und Montage GmbH v Amt der Salzburger Landesregierung fur den Bundesminister fur wirtschaftliche Angelegenheiten ECJ 16-Sep-1999
Where a tendering process completed leaving only one tender remaining, the contracting authority was not required to award the contract to the only tenderer judged to be suitable: ‘In a context different from that of the present case (there were . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 January 2022; Ref: scu.409224

Kirk v Walton: QBD 24 Jul 2008

The defendant sought leave to bring proceedings for contempt of court against the claimant saying that she had had no honest belief in the matters deposed in her statement of truth, in that she had substantially exaggerated her injuries.
Held: Leave was granted. The court approached the application on the basis ‘that the discretion to grant permission should be exercised with great caution; that there must be a strong prima facie case shown against the Claimant, but that I should be careful not to stray at this stage into the merits of the case; that I should consider whether the public interest requires the committal proceedings to be brought; and that such proceedings must be proportionate and in accordance with the overriding objective’ and ‘the context for this application is a particularised schedule of damages in which, before disclosure of the DVD recordings, this Claimant was seeking to recover over andpound;800,000 in damages from the Defendant’s insurers. The allegations are, in my view, sufficiently serious as to merit such proceedings being brought in the public interest and, having regard to the overriding objective, are proportionate in the circumstances. There is, in my judgment, a strong public interest in personal injury claimants pursuing honest claims before the courts.’

Cox J DBE
[2008] EWHC 1780 (QB), [2009] 1 All ER 257
Bailii
England and Wales
Citing:
Cited – Malgar Ltd v R E Leach Engineering Ltd ChD 1-Nov-1999
The Civil Procedure Rules could not change the substantive law. It therefore remained necessary for it to be shown that in addition to knowing that what was said was false, the party had to have known that what was being said was likely to interfere . .
Cited – Sony Computer Entertainment and Others v. Ball and Others ChD 17-May-2004
Pumfrey J considered the test to be applied when a party applied for leave to commence proceedings for contempt of court against another party: ‘It seems to me, in the light of the judgment in Malgar v. Leach, that the discretion to permit . .

Cited by:
Cited – KJM Superbikes Ltd v Hinton CA 20-Nov-2008
The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt . .
See Also – Walton v Kirk QBD 3-Apr-2009
Coulson J considered RSC Order 52 to decide whether he had jurisdiction to hear a complaint of contempt of court arising from statements filed in County Court proceedings and said to be false.
Held: He did have jurisdiction: ‘At the outset of . .
Cited – Barnes (T/A Pool Motors) v Seabrook and Others Admn 23-Jul-2010
In each of three cases, the former defendants sought leave to bring claims for contempt of court in respect of what it said were fraudulent claims by the respondents. The defendants argued that a party had first to go to the Attorney General.
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, Contempt of Court

Updated: 12 January 2022; Ref: scu.272257

Douglas, An Infant, and His Guardians, The Duchess Dowager of Douglas and Others v The Duke of Hamilton; Lord Douglas Hamilton, and Others: HL 13 Mar 1764

Title to Sue – Proof – Witness – Re-examination. – Held (1) that the respondents had sufficient title and interest to sue. (2) That it was competent to examine witnesses of new, who had been examined in Paris, in a process tournelle criminelle, in regard to the same matters. (3) That it was not necessary to make the cancellation of the witnesses’ previous testimony an absolute condition of their being examined of new; and, therefore, their evidence allowed to be taken, but to be sealed up, reserving all objections. (4) Copies or excerpts of documents, and proceedings had before a foreign court, were ordered to be produced in case the originals themselves could not be got, or delivered up.

[1764] UKHL 6 – Paton – 763, (1764) 6 Paton 763
Bailii
Scotland

Litigation Practice

Updated: 11 January 2022; Ref: scu.560632

John Gordon of Auchanachy, and Alexander Gordon, His Trustee v Miss Grizel Ogilvie: HL 22 Mar 1762

Reduction – Transaction – Res Judicata – Representation – Prescription.-
Circumstances in which transaction with predecessor, was held to bar the challenge of the heir, though the deed of renunciation embodying this transaction was also sought to be reduced; and the heir insisted that he was not bound by his mother’s deed, he not representing her, but passing by and claiming right from a more remote predecessor. Also, that res judicata barred action; but plea of prescription repelled, in respect of interruption.

[1762] UKHL 2 – Paton – 61, (1762) 2 Paton 61
Bailii
Scotland

Limitation, Litigation Practice

Updated: 11 January 2022; Ref: scu.560600

Bilta (Uk) Ltd v Nazir and Others: ChD 24 Nov 2010

The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. The claimant sought to have the defence struck out on the basis that documents had been destroyed by the defendant.
Held: The applications generally failed.

Lewison J
[2010] EWHC 3227 (Ch)
Bailii
England and Wales
Citing:
See Also – Bilta (UK) Ltd (In Liquidation) v Nazir and Others ChD 17-May-2010
The sixth defendant resisted a claim against it saying that matters between them were governed by a framework agreement which provided for matters to be resolved by arbitration. The claimant resisted, denying the arbitration agreement and saying . .
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 . .
Cited – Landaur Limited v Cummings and Co 4-May-1991
An inadvertent destruction of documents may have the same consequences visited on the party as a deliberate destruction. . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Woodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
Cited – Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .

Cited by:
See Also – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
At first instance (2) – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
At first Instance (2) – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 10 January 2022; Ref: scu.560327