Category: Litigation Practice

Vakauta v Kelly: 1989

(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.’
Toohey J said: ‘… when a party is in a position to object but takes no steps to do so that party cannot be heard to complain later that the judge was biased.’

Brennan, Deane and Gaudron JJ
(1989) 167 CLR 569
Australia
Citing:
Appeal from – Vakauta v Kelly 1988
(Supreme Court of New South Wales) The judge had made disparaging remarks about certain doctor witnesses who ‘thought you could do a full day’s work with no arms and no legs.’ Mahoney JA discussed a suggestion of apparent bias, saying: ‘In . .

Cited by:
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.537709

Mortgage Express v Abensons Solicitors (A Firm): ChD 20 Apr 2012

The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation of breach of trust had improperly removed a limitation defence.
Held: The appeal was allowed. The court noted that the claimant may in any event have issued new proceedings in which the fiduciary breach claims were raised, and it would be for another court to consider whether the claims should later be consolidated.

Cooke J
[2012] EWHC 1000 (Ch)
Bailii
Limitation Act 1980 32
England and Wales
Citing:
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Mortgage Corporation v Alexander Johnson (A Firm) ChD 7-Jul-1999
The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – Seaton and Others v Seddon ChD 23-Mar-2012
The claimants sought damages alleging that royalties were due to them. The defendant solicitors applied to strike out the action as against themselves as an abuse of process. . .
Cited – Williams v Fanshaw Porter and Hazelhurst CA 18-Feb-2004
The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts, Litigation Practice, Limitation

Updated: 13 December 2021; Ref: scu.457680

In re Trusts of X Charity: ChD 2003

If a hearing is heard in private, then it is open to the court to rule that its judgment should be maintained in private. Sir Andrew Morritt said: ‘This, essentially administrative, jurisdiction is designed to provide guidance to the fiduciary as to the proper exercise of his powers in the problematic circumstances with which he is faced. Only rarely could it be said to determine the rights of anyone.’

Sir Andrew Morritt, Vice Chancellor
[2003] 1 WLR 2751, [2003] EWHC 257 (Ch)
European Convention on Human Rights 6
England and Wales
Cited by:
Cited – Three Rivers District Council and others v The Bank of England CA 14-Jul-2005
A long hearing was to be interrupted by the long vacation. The Bank sought an order to restrict publication of the part evidence given by one witness until his evidence had been concluded.
Held: Though the witness was only such and not a . .
Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 13 December 2021; Ref: scu.230909

Flightwise Travel Services Ltd and Another v Gill and Others: ChD 27 Nov 2003

Those applying for international asset freezing orders should bear in mind the following points: An asset freezing order (other than a proprietary order) was a serious interference with a person’s rights, and was usually granted without notice. Accordingly an applicant had a duty to fully inform the respondent well before the on notice hearing. A sworn statement in support should normally be supplied. A failure to comply with an undertaking might lead to the order’s discharge. The order should be framed to cause minimum interference. A sufficiently strong case for making the order must be shown, and the onus lay on the applicant to show a clear need: ‘once the court considers that there is a real case for granting an injunction the fact that it will cause or appears that it will cause no or little harm to the respondent is a fact that the applicant can pray in aid.’

Neuberger J
Times 05-Dec-2003, (2003] EWHC 3082
England and Wales
Cited by:
Cited – Jewellery Appraisal Services v Belson and others QBD 11-Apr-2005
The defendants had sold a business and included a non-compete covenant. The claimants sought to enforce it against them. It was said that they had approached insurers with a view to commencing business supplying jewelry. The defendants said their . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.188625

JSC BTA Bank v Usarel Investments Ltd: ChD 24 Jun 2013

The applicant, Mr Rubin, seeks a ruling that his appointment as litigation receiver in relation to the 5th defendant in the action (‘Usarel’) gives him power to conduct an appeal (including an application to the Court of Appeal for permission to appeal) from the order of Teare J following the trial of the action.

Mr Justice Warren
[2013] EWHC 1780 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 13 December 2021; Ref: scu.512271

Gholizadeh v Sarfraz: ChD 27 Jul 2021

The appeal is brought under CPR 52.21(3)(b) on the grounds that the decision of the Judge was unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

Miles J
[2021] EWHC 2814 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 12 December 2021; Ref: scu.668749

Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems Nv and others: CA 11 Mar 2008

The judgment debtor was ordered to attend for questioning under Rule 71.2. The attendance was adjourned several times, and at last to 31st January 2008. He was under investigation in India and needed permission to travel, which was given but only until 31st January. The judgment creditor declined a further adjournment to allow him to comply, and he applied for an adjournment and left the country. The judge made a suspended committal order. The officer had and shown the judge the correspondence explaining the difficulty and seeking an adjournment. The judge committed Mr. Mehta to prison for 28 days, but suspended the order so long as he attended for questioning on 11th March 2008. Mr. Mehta now appealed.
Held: Rules 71.2, 71.3 and 71.8 together might suggest that a suspended committal order is the normal response to a failure by the judgment debtor to comply with an order to attend court for questioning. That was incorrect. The essential question was whether the judge had been right to be satisfied to the criminal standard that Mr. Mehta was in ‘contumacious’ contempt of court so as to justify an order of committal. The judge ought not to have made a committal order, even a suspended order, because the evidence did not enable him to be satisfied of that. Rix LJ said: ‘everything about that rule [sc. rule 71.8] and the notes in the White Book beneath it suggest that the making of such an order is almost a matter of form, and indeed it is provided for by the fact that there is a court form – a standard form – providing for this type of order. It appears to be thought that no harm is done if the very excellent consequence of such an order is that on the next occasion, under the threat of this order having been made, the judgment debtor does indeed appear for examination.
The fact is, however, that an order for committal to prison (albeit suspended) has been made. It seems to me that a judge needs to be suitably cautious about making such an order in the light of evidence before the court – whether it is of a medical kind or, as in this case, evidence from a lawyer, relating to the fact that the judgment debtor in question was not permitted to be outside a foreign country on the day in question – which may make it inappropriate for a suspended order to be made. It may be that in such circumstances it would be appropriate for the judge in question to issue a warning that it is very likely that, if the judgment debtor does not appear on the next occasion fixed, such an order for committal may well be made on that occasion.’

Tuckey, Auld, Rix LJJ
[2008] EWCA Civ 389
Bailii
England and Wales
Cited by:
Cited – Broomleigh Housing Association Ltd v Okonkwo CA 13-Oct-2010
The court considered an application for committal where the evidence was not so conclusive as to allow committal, but where a suspended order might assist in ensuring better compliance. O had failed on several occasions to attend court to be . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 December 2021; Ref: scu.267078

Baker v Quantum Clothing Group Ltd: CA 28 Jun 2007

[2007] EWCA Civ 750
Bailii
England and Wales
Cited by:
See Also – Baker v Quantum Clothing Group Ltd and Another CA 11-Jun-2008
Application by claimant for order that the respondents would be responsible for their own costs of the appeal irrespective of its outcome. . .
See Also – Baker v Quantum Clothing Group CA 22-May-2009
The court considered the responsibility of employers for hearing losses resulting from exposure to noise at a level not at the time appreciated to cause a risk of injury. Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably . .
See Also – Baker v Quantum Clothing Group and Others CA 5-Jun-2009
The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of . .
See Also – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 December 2021; Ref: scu.258786

Interbulk Limited v Aiden Shipping Co Limited (The “Vimeira”): CA 1984

The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.’ Ackner LJ: ‘Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.’

Robert Goff LJ, Ackner LJ
[1984] 2 Lloyd’s Rep 66
England and Wales
Citing:
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

Cited by:
Appeal from – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Bandwidth Shipping Corporation v Intaari (‘Magdalena Oldendorrf’) CA 17-Oct-2007
An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 11 December 2021; Ref: scu.235381

Powell v Chief Constable of North Wales Constabulary: CA 20 Aug 1999

Application for permission to appeal by the defendant. The defendant had asserted a public interest immunity in refusing to disclose evidence of a witness since it would lead to the revelation of the identity of an informer.
Held: Leave was given. Where a court decided that the admission of evidence would have to be hidden from the other party, because a claim for public interest immunity had to be accepted, the evidence itself should be excluded. The court had no discretion to find some kind of compromise for its admission.

Laws LJ
Times 11-Feb-2000, [1999] EWCA Civ 2097
Bailii
England and Wales
Citing:
Cited – Marks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
Cited by:
Leave – Powell v Chief Constable of North Wales Constabulary CA 16-Dec-1999
Roch LJ said: ‘When an issue of public interest immunity is raised, the court’s first duty is to weigh the public interest in preserving the immunity against the public interest that all relevant information which might assist a court to ascertain . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 11 December 2021; Ref: scu.147012

Bates v Bates (No 2): CA 21 Dec 1888

W petitioned for judicial separation from her husband on the ground of cruelty. An order was made that the respondent should pay the petitioner’s solicitor pounds 41 odd to cover costs already incurred and should pay into court pounds 40 as security for future costs alternatively give a bond. The respondent did none of these things and the petitioner applied for leave to issue a writ of attachment. Leave was granted by Butt J. The respondent appealed, relying upon section 4 of the 1869 Act. Counsel for the petitioner conceded that the order could not be supported so far as it related to the order for payment of pounds 41 odd.
Held: Subject to that, the appeal failed.
Cotton LJ said: ‘In my opinion the order for attachment was not in violation of the Debtors Act, because it was not for default in payment of a sum of money within the meaning of that section. The object of the Act was to prevent the imprisonment of persons for nonpayment of ordinary debts. No doubt the words used in the Act are very wide; but we must consider what was really meant by the payment of a sum of money. This order was not for the payment of a sum of money to the respondent; nor was it simply an order for the appellant to pay a sum of money into court; but there was an alternative, he was either to pay the money or to give a bond. It was argued that the mention of the bond was only subsidiary to the order for payment of the money, that the order was in effect simply an order to pay the money. I do not take that view. If the appellant had given the bond, he would have complied with the order . . The order was an order to give security, and as such was not within the 4th section of the Debtors Act . . ‘
Lindley LJ said: ‘The question turns upon the words of the 4th section of the Debtors Act. It is said that the appellant is within the protection of the Act, because he has made default in payment of a sum of money. But what do the words ‘payment of money’ in this section mean? In my opinion, they do not mean depositing a sum of money in court, to abide an order to be subsequently made. If the appellant had been ordered to pay the money to the receiver of the Court in discharge of an obligation to which he had been declared liable, that might be different. But that is not so here; he is to deposit the money in court, or to give security for it. That is not within the meaning of the words of the Act.’

Cotton LJ, Lindley LJ, Bowen LJ
(1888-1889) LR 14 PD 17, [1888] UKLawRpPro 54
Commonlii
Debtors Act 1869 4
England and Wales
Cited by:
Cited – Hussain v Vaswani and Others CA 18-Sep-2020
Breach of Undertaking went Beyond Debt
The tenant had obtained a stay of execution of a warrant for possession, by undertaking to discharge the arrears. He failed to pay, and the Court now considered whether such a failure was a contempt with a possible imprisonment for punishment. The . .
Cited – Prosser v Prosser ChD 2011
A consent order had been made in proceedings between two brothers which provided that the respondent should instruct the solicitors acting for him on the sale of his property that the proceeds of sale were to be remitted to a nominated bank account. . .
Cited – Graham v Graham CA 1992
. .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 11 December 2021; Ref: scu.654049

Apvodedo Nv v Collins: ChD 17 Apr 2008

Henderson J set out the test of whether a case was suitable for summary judgment: ‘It is well established that in order to defeat an application for summary judgment it is enough for the defendant to show a prospect of success which is real in the sense of not being false, fanciful or imaginary. However, the burden on the defendant is at most an evidential one. The overall burden of proof rests on the claimant to establish, if it can, the negative proposition that the defendant has no real prospect of success . . and that there is no other reason for a trial. Regard must also be had to the overriding objective of dealing with the case justly. The court should not hesitate to give summary judgment in a plain case, and if the case turns on a pure point of law, it may determine that point. However, the court has often been enjoined not to conduct a mini-trial on the documents, without discovery and oral evidence . .’

Henderson J
[2008] EWHC 775 (Ch)
Bailii
England and Wales
Cited by:
Cited – Antonio Gramsci Shipping Corporation and Others v Recoletos Ltd and Others ComC 24-May-2010
The claimants sought summary judgment in their claims alleging fraud by the several defendants.
Held: Gross J granted leave to the Corporate Defendants to defend only upon terms of (in effect) a payment into court of $40 million. . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 11 December 2021; Ref: scu.266964

Wells v Pickering: ChD 17 May 2002

The rules required a court, looking to enforce a charging order, to look to any other competing proprietary interests. The claimant suggested that this should include the welfare interests of any child occupying the property as his or her home.
Held: The welfare interests were not proprietary interests. The rules made no specific provision for such interests and the normal rules applied.

Mr David Oliver, QC
Times 04-Jun-2002, Gazette 27-Jun-2002
Rules of the Supreme Court Order 88, rule 5A(2)(f)
England and Wales

Land, Children, Litigation Practice

Updated: 11 December 2021; Ref: scu.172219

American Cyanamid Co v Ethicon Ltd: HL 5 Feb 1975

Interim Injunctions in Patents Cases

The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of Appeal.
Held: The questions which applied when looking for an interim injunction in patent infringement cases were no different from those in other cases. The court must first look to the balance of convenience. There was no rule that the court must first look for the prospects of success of either party. The court must be satisfied the claim ‘is not frivolous or vexatious; in other words, that there is a serious question to be tried’. Where there was any doubt about damages being adequate compensation for the grant or withholding of an injunction, the court should preserve the status quo. The judge’s assessment of that balance of convenience was not to be disturbed.
Lord Diplock said of the phrase ‘prima facie case’ that it ‘may in some contexts be an elusive concept’ and ‘the governing principle is that the court should first consider whether, if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable would be [an] adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.’

Lord Diplock, Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and Lord Edmund-Davies
[1975] 2 WLR 316, [1975] AC 396, [1975] UKHL 1, [1975] 1 All ER 504, [1975] FSR 101, [1975] RPC 513
Bailii
England and Wales
Citing:
Cited – Donmar Productions Ltd v Bart (Note) 1967
. .
Cited – Harman Pictures N V v Osborne ChD 1967
The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a . .
Cited – Hubbard v Vosper CA 1971
Claims of infringement were made as to copyright works being various works about Scientology. Extracts had appeared in the defendant’s book which was critical of the cult. It was submitted by the plaintiff that the fair dealing section applied only . .
Cited – Jones v Pacaya Rubber and Produce Co Ltd CA 30-Nov-1910
If, while an action is pending against a company for the rescission of a contract to take shares, the company give notice to the plaintiff to forfeit the shares in consequence of non-payment of calls, the Court will, on the plaintiff paying into . .
Cited – Preston v Luck CA 1884
The court referred to the need to show ‘a probability that the plaintiff is entitled to relief’
Cotton LJ, though not using the expression ‘prima facie case’ defined the said requirement thus: ‘. . though the Court is not called upon to decide . .
Cited – Smith v Grigg Ltd CA 1924
The plaintiff sought an interlocutory injunction to restrain infringement of a registered design.
Held: Where the design was of recent origin, had not been established by a court of law, and where its validity could be doubted, the court would . .
Cited – Wakefield v Duke of Buccleugh 1865
The practice of taking undertakings from a party at an interlocutory hearing: ‘aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing.’ . .

Cited by:
Cited – Imutran Ltd v Uncaged Campaigns Ltd and Another ChD 11-Jan-2001
The test for whether an interim injunction should be granted restraining publication of material claimed to be confidential, where such a grant would infringe the right to freedom of expression was slightly different under the 1998 Act. The . .
Cited – Cream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
Cited – Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) PC 13-Aug-2003
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Herbage v Pressdram Ltd CA 1984
There was a publication of articles which referred to convictions which were spent under the 1974 Act. The court restated the principle in Bonnard v Perryman: ‘These principles have evolved because of the value the court has placed on freedom of . .
Cited – Herbage v Times Newspapers Ltd CA 30-Apr-1981
The principles in American Cyanamid did not affect the rule in Bonnard v Perryman. Sir Denys Buckley saiod: ‘the question what meaning the words complained of bore was primarily one for the jury. Suppose the words bore the second meaning alleged and . .
Cited – University of Oxford and others v Broughton and others QBD 10-Nov-2004
The claimants sought injunctions to protect themselves against the activities of animal rights protesters, including an order preventing them coming with a wide area around the village.
Held: The orders made were justified with the additional . .
Cited – Hall and others v Save Newchurch Guinea Pigs (Campaign) and others QBD 17-Mar-2005
The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
Held: The claimants had been subjected to a . .
Cited – Jewellery Appraisal Services v Belson and others QBD 11-Apr-2005
The defendants had sold a business and included a non-compete covenant. The claimants sought to enforce it against them. It was said that they had approached insurers with a view to commencing business supplying jewelry. The defendants said their . .
Considered – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Cited – NWL Ltd v Woods HL 1979
The phrase ‘trade dispute’ was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: ‘It is wrong to attempt to construe . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Cited – Garden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
Cited – Boehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
Cited – Jacobs v Official Receiver; In re Jacobs (a bankrupt) ChD 3-Apr-1998
The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the . .
Cited – Intercall Conferencing Services Ltd v Steer QBD 15-Mar-2007
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
Cited – Faisaltex Ltd and Others v Lancashire Constabulary and Another QBD 24-Jul-2009
The claimants wished to claim damages saying that in executing a search warrant, the defendant had made excessive seizures of material. The claimants sought inspection by independent counsel of the materials seized to establish this in a manner . .
Cited – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
Cited – British Broadcasting Corporation v Harpercollins Publishers Ltd and Another ChD 4-Oct-2010
The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV . .
Cited – Smith v Inner London Education Authority CA 1978
Lord Denning MR doubted the applicability of the criteria in American Cynamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the . .
Cited – Coventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Cited – AB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Cited – Merlin Entertainments LPC and Others v Cave QBD 25-Sep-2014
The claimants operated amusement parks. The defendant, believing that the parks were not being opearated as safely as they should be set up web-sites attacking the claimants and some employees in intemperate terms. The claimants sought interim . .
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Modified – NWL Limited v Woods 1979
Lord Diplock said: ‘Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
Cited – Lawrence David Limited v Ashton CANI 1989
The American Cyanamid principles apply in cases of interlocutory injunctions in restraint of trade just as they do in other cases. . .
Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Leading Case

Updated: 11 December 2021; Ref: scu.174732

Preston v Luck: CA 1884

The court referred to the need to show ‘a probability that the plaintiff is entitled to relief’
Cotton LJ, though not using the expression ‘prima facie case’ defined the said requirement thus: ‘. . though the Court is not called upon to decide finally on the rights of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing and on the facts before it there is probability that the plaintiffs are entitled to relief.’

Cotton LJ
(1884) 27 Ch 497
England and Wales
Cited by:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 December 2021; Ref: scu.182269

Jones v Pacaya Rubber and Produce Co Ltd: CA 30 Nov 1910

If, while an action is pending against a company for the rescission of a contract to take shares, the company give notice to the plaintiff to forfeit the shares in consequence of non-payment of calls, the Court will, on the plaintiff paying into Court the amount of the call with interest, restrain the company until the trial of the action from forfeiting the shares.
The court considered the standard of proof when considering an application for an interim injunction. There was a need to show that there is ‘certainly a case to be tried.’

Buckley LJ
[1911] 1 KB 455, [1910] UKLawRpKQB 180
Commonlii
England and Wales
Cited by:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 December 2021; Ref: scu.182268

Farrell (Formerly McLaughlin) v The Secretary of State for Defence: HL 1980

The purpose of pleadings is to enable the opposing party to know the case against him. Lord Edmund-Davies said that: ‘It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions.’ and ‘It is to define the issues and inform the parties in advance what they have to meet and at the same time enable them to take the necessary steps to deal with it.’
Viscount Dilhorne said that section 3(1) of the 1967 Act may provide a defence to a civil action for assault or battery.

Viscount Dilhorne, Lord Edmund-Davies
[1980] 1 WLR 172, [1980] 1 All ER 166
Criminal Law Act 1967 3(1)
England and Wales
Cited by:
Cited – Pollard v Chief Constable of West Yorkshire Police CA 28-Apr-1998
Damages for assault by police dog.
Held: Though in principle reasonable force can be used in the course of assisting in the arrest of a suspected offender, that must always be reasonable and proportionate. The claimant’s appeal failed. The . .
Cited – Roberts v Chief Constable of Kent CA 17-Dec-2008
The claimant had been bitten by a police dog while running away after being asked to provide a sample of breath. He was caught by the dog and then warned that if he attempted to run away again, the dog would be set to catch him. A struggle ensued, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Police

Updated: 10 December 2021; Ref: scu.381617

Huntingdon Life Sciences Group Plc and Another v Stop Huntingdon Animal Cruelty (SHAC): QBD 15 Mar 2007

The claimant company was licensed to carry out scientific research, including research on live animals. The defendant association and its members opposed such work as cruel. The claimant had obtained an injunction to restrain the defendants harrassing protests. They now sought additional orders to protect staff members.
Held: The order had provided a structure within which the defendants had operated lawfully. The order could be widened and modified to match experience, but not so as to include a claim for damages.

[2007] EWHC 522 (QB)
Bailii
Animal (Scientific Procedures) Act 1986, Civil Procedure Rules 19(6), Protection from Harassment Act 1997 3
England and Wales
Citing:
See Also – Huntingdon Life Sciences Group Plc Huntingdon Life Sciences Limited, Brian Cass (for and on Behalf of the Employees of the First Claimant Pursuant To Cpr Part 19.6) v Stop Huntingdon Animal Cruelty QBD 28-May-2004
The claimant companies conducted forms of medical research to which the respondents objected, and showed their objections by a wide variety of acts and threats which the claimants sought to have stopped. The defendants sought discharge of an interim . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 10 December 2021; Ref: scu.250709

L v L and Hughes Fowler Carruthers: QBD 1 Feb 2007

The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said that the information was subject to professional legal privilege and was otherwise confidential. They had admitted possession of copies of two hard drives from his computers, but said that the possession was lawful.
Held: The material did include confidential material. The evidence should be preserved, but the wife should not be allowed to take advantage of her position. At trial W might be found to have acted unlawfully under either or both the 1990 Act or the 1998 Act. The material should be held by H’s solicitors until trial. It was not clear that the issues raised here would be dealt with by the Family Division, and transfer was refused. An action could lie against W and against the solicitors as co-tortfeasors. It could not be struck out.
Tugendhat J said: ‘I find it a matter for considerable concern that parties to litigation should conduct searches which lack any of the safeguards built into a search order issued by the court, and all the more so if they do that in circumstances where they could not reasonably expect to obtain any such order from the court . . It is a matter for Parliament and the courts to strike the balance between the public interest in protecting privacy and the public interest in ensuring fair trials and the protection of the rights of spouses, in particular by ensuring that evidence is not destroyed and concealed. But whatever the right balance, it is not in the public interest that the law be flouted . . It is said that this [the Hildebrand procedure] is a concept unknown in the Queens Bench Division. I do not consider the concept is unknown in this Division, even if the name of the case is not cited. As I understand the principle, it is the application to Family Proceedings of the principle referred to above, namely that in civil proceedings it has hitherto generally been considered that admissible evidence must be admitted however it has been obtained and if it has been obtained by reprehensible means, then that should be visited upon the wrongdoer, if at all, in orders for costs, or in some other way.’

Tugendhat J
[2007] EWHC 140 (QB), [2007] 2 FLR 171
Bailii
Matrimonial and Family Proceedings Act 1984, Data Protection Act 1998 35 55, Computer Misuse Act 1990
England and Wales
Citing:
Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – K v K (Financial Capital Relief; and Management of Difficult Cases) FD 17-May-2005
W applied for full ancillary relief arising upon the breakdown of her marriage. She copied a number of the husband’s documents, rummaged through dustbins and took documents from her husband’s pockets. When she was no longer living in the former . .
Cited – A v B FD 31-Jul-2000
Husband and wife pursued ancillary relief applications, but an issue arose as to copyright, and it was transferred to Chancery. W kept a personal diary. H read it after W said she wanted a divorce. He read passages and had extracts photocopied . .
Cited – T v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
Cited – Halford v The United Kingdom ECHR 25-Jun-1997
halford_ukECHR1997
The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – Calcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Cited – Hughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
Cited – Lock v Beswick 1989
The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee.
Held: Hoffmann J said: ‘Even in cases in which the plaintiff has strong evidence that an employee . .
Cited – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Cited by:
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 10 December 2021; Ref: scu.248402

Royster v Cavey: CA 1946

The plaintiff sought damages after being injured on her way to work. The Crown nominated the superintendent of a factory in which the plaintiff was injured as its occupier in order to allow the claim which would otherwise have failed for Crown privilege. The court below had refused to allow this fiction.
Held: The plaintiff’s appeal failed. Crucial admissions on which the case had been conducted at first instance should not be accepted, because they were contrary to fact.
Scott LJ said: ‘As a matter of fact . . the defendant so named had nothing whatever to do with the accident; he was not the occupier of the premises; he had not been guilty of any negligence, nor of any breach of statutory duty under the Act. Those allegations, that he did occupy that position and was so guilty, were accepted by the defence to the extent of not raising the question of his personal position.’
Buckhill LJ said: ‘The result is, in my view, that this court cannot pronounce judgment against a defendant when in truth and in fact he is not under any liability at all.’

Scott, Buckhill LJJ
[1946] 2 All ER 642, [1947] KB 204
England and Wales
Citing:
Followed – Adams v Naylor HL 1946
The House disapproved of the practice of appointing a nominee defendant in tort actions against whom damages could be awarded as opposed to a party with crown immunity. The House refused to entertain a claim against a nominated army officer arising . .

Cited by:
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Constitutional, Personal Injury, Litigation Practice

Updated: 10 December 2021; Ref: scu.237563

National Coal Board v Ridgeway: CA 1987

‘action’ in section 23(1) of the 1978 Act included an omission.

Bingham LJ , May LJ
[1987] ICR 641, [1987] 3 All ER 582
Employment Protection (Consolidation) Act 1978 23(1)
England and Wales
Cited by:
Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 10 December 2021; Ref: scu.240384

Rush and Tomkins Ltd v Greater London Council: HL 3 Nov 1988

The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the agreement so that it could pursue its own action. The council said that the document was covered by the without prejudice rule.
Held: When looking at without prejudice negotiations to decide on admissibility, it would be wrong to isolate admissions before admitting the rest. That would not allow the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. The rule applies ‘to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.’

Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
[1989] AC 1280, [1988] 3 WLR 939, [1988] 3 All ER 737, [1988] UKHL 7
Bailii
England and Wales
Citing:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Waldridge v Kennison 1794
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case. . .
Cited – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Kitcat v Sharp 1882
The plaintiff clergyman had begun his action for rescission of a contract with the defendant for misrepresentattion. The defendant sent him a ‘private and confidential’ letter threatening publication of the pleadings with comments depreciating the . .
Cited – Teign Valley Mining Co. Ltd, v Woodcock 22-Jul-1899
A company claimed for money owed upon calls upon its shares. The defendant, Woodcock, admitted liability to the company but claimed against a Captain Rising that he held the shares as his nominee. The judge admitted in evidence terms of the . .
Cited – Rabin v Mendoza and Co CA 1954
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be . .
Cited – Stretton v Stubbs Ltd CA 28-Feb-1905
(1905) The plaintiff, an artist had a judgment against him by a picture frame maker. It had been entered by consent under an agreement with the plaintiff’s solicitor that no publicity should be given to the result of the action. Nevertheless, the . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .

Cited by:
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Hall and Another v Pertemps Group Ltd and Another ChD 21-Nov-2005
It was alleged that in the course of mediation one party had made a threat against the other. The current application related to a report of the mediation made to a third party, and the court was asked to take account of that threat in assessing . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Best Buy Co Inc and Another v Worldwide Sales Corp. Espana Sl ChD 8-Jul-2010
The claimant accused the defendant of making threats in connection with trade mark applications. The claimants operated under US trade marks associated with ‘Best Buy’ and sought similar marks in Europe. The defendant company traded under a similar . .

Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice, Construction

Leading Case

Updated: 10 December 2021; Ref: scu.182472

Trendtex Trading Corporation v Credit Suisse: CA 1980

A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it.
Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal. It is perfectly legitimate today for one person to support another in bringing or resisting an action – as by paying the costs of it – provided that he has a legitimate and genuine interest in the result of it and the circumstances are such as reasonably to warrant his giving support.
Oliver LJ discussed the history of the law of champerty in some detail, saying: ‘Maintenance and champerty . . have, since 1967, ceased to [attract criminal pemalties] . . Only in the field of contractual rights and duties do they still cast their shadow . . and even in this field the trend of all the recent authorities has been to foreshorten the shadow. . There is, I think a clear requirement of public policy that officers of the court should be inhibited from putting themselves in a position where their own interests may conflict with their duties to the court by agreement, for instance, of so called ‘contingency fees’.’

Denning, Oliver LJJ
[1980] QB 629, [1980] 3 All ER 721, [1980] 3 WLR 367
Criminal Law Act 1967 14(2)
England and Wales
Citing:
Cited – Hill v Archbold CA 1968
Denning LJ said: ‘Much maintenance is considered justifiable today which would in 1914 have been considered obnoxious. Most of the actions in our courts are supported by some association or other, or by the State itself. Comparatively a few . .

Cited by:
Cited – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Considered – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Appeal from – Trendtex Trading Corporation v Credit Suisse HL 1981
A party had purported to sue having taken an assignment of a dishonoured letter of credit, in the context of the abolition of maintenance and champerty as crimes and torts in the 1967 Act.
Held: The assignment was struck down as champertous, . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 10 December 2021; Ref: scu.183809

Bradford and Bingley Plc v Rashid: HL 12 Jul 2006

Disapplication of Without Prejudice Rules

The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for the sum still due after the sale of the mortgaged property fell short of the debt, that the respondent was not in a position to pay ‘the outstanding balance, owed to you.’
Held: The letter was sufficient to constitute an admission. The lender’s appeal was allowed. ‘the without prejudice rule has no application to apparently open communications, such as those here, designed only to discuss the repayment of an admitted liability rather than to negotiate and compromise a disputed liability.’
Lord Hoffmann said: ‘This limitation on the scope of the without prejudice rule, confining it to admissions which can be construed as made hypothetically rather than without qualification, is not limited to the use of these admissions as acknowledgements under section 29(5) or its Scottish equivalent. It is entirely general. As such . . it goes too far. There is nothing in the modern English authorities to encourage a dissection of correspondence or, still worse, conversations, to ascertain whether admissions of fact were made hypothetically or without qualification.’ and ‘the without prejudice rule, so far as it is based upon general public policy and not upon some agreement of the parties, does not apply at all to the use of a statement as an acknowledgement for the purposes of section 29(5).’
Lord Brown of Eaton-under-Heywood said: ‘In my opinion the without prejudice rule has no application to apparently open communications, such as those here, designed only to discuss the repayment of an admitted liability rather than to negotiate and compromise a disputed liability. I find it impossible to regard the correspondence here as constituting ‘negotiations genuinely aimed at settlement’ (Lord Griffiths in Rush and Tompkins v GLC [1989] AC 1280 at 1299) or ‘an attempt to compromise actual or impending litigation’ (Sir Robert Megarry V-C in Chocoladenfabriken Lindt and Sprungli AG v Nestle Co Ltd. [1978] RPC 287). Nor does the underlying public policy justification for the rule appear to have any application in circumstances such as these. That justification, as Oliver LJ observed in Cutts v Head [1984] Ch 290 at 306 ‘essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability’. No ‘statements or offers’ were made here with a view to settling a dispute. Since the debt was admitted, there was no dispute. As Mr Fenwick aptly put it in argument, Mr Rashid was simply asking for a concession; he was not giving one.’
Lord Mance said: ‘The existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as ‘without prejudice’ . . the rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise (rather than in the sense of simple payment or satisfaction).’

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2006] 1 WLR 2066, Times 14-Jul-2006, [2006] UKHL 37, [2006] 4 All ER 705, [2006] 29 EG 132, [2006] 2 All ER (Comm) 951
Bailii
Limitation Act 1980 29(5)
England and Wales
Citing:
Cited – Spencer v Hemmerde HL 1922
A barrister borrowed 1,000 pounds for two months in 1910 but did not repay it. In 1915 the creditor pressed for payment and the debtor wrote to acknowledge the debt but asked for more time. The creditor ‘stayed his hand’. When proceedings were . .
Appeal from – Bradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
Cited – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
Cited – Watson-Towers Ltd v McPhail 1986
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without . .
Cited – Turner v Railton 1796
Evidence was admitted that the defendant’s former attorney had admitted the debt claimed and made an offer on the defendant’s behalf to pay a certain sum on account. Lord Kenyon said: ‘Concessions made for the purpose of settling the business for . .
Cited – Kirschbaum v ‘Our Voices’ Publishing Co 1971
(Ontario High Court) The court was asked whether discovery of letters written without prejudice should be permitted so that the parties might explore the question whether they contained admissions of fact which could be taken into account at the . .
Cited – Dungate v Dungate CA 1965
A claim was made against the widow and administratrix of the deceased’s estate by his surviving brother. The widow wrote to the creditor: ‘Keep a check on totals and amounts I owe you and we will have account now and then . . .Sorry I cannot do you . .
Cited – Phillips v Rogers 1945
The creditor argued that the limitation period was extended anew when the debtor wrote: ‘Re your correspondence re Mr C H Phillips claim $1300 which he is prepared to settle November 1st for $700. Please thank Mr Phillips for the kind offer. I have . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – Subramaniam v Director of Public Prosecutions PC 1956
(Malaysia) The defendant sought to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions, ‘nothing is an offence which is done by a person who is compelled to do it . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Surrendra Overseas Ltd v Government of Sri Lanka 1977
A debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. An acknowledgement of part only of a debt cannot operate to acknowledge more.
Kerr J . .
Cited – Chocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd 1978
Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Jones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Cited – Richardson v Quercus Limited IHCS 24-Dec-1998
The pursuer owned a flat on the second and top floors of a building damaged by renovation works carried out by the defenders to the basement and ground floor of the same building. He relied on a letter by the defenders’ loss adjusters confirming . .
Cited – Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika Bpk 1964
(South Africa) A clear admission by an insurer of liability in the course of without prejudice negotiations about quantum was sufficient to restart the limitation period. . .
Cited – Good v Parry CA 1963
A letter discussed first the writer’s proposed purchase of the house (offering andpound;1,350 subject to contract), and continued: ‘The question of outstanding rent can be settled as a separate agreement as soon as you present your account.’
Cited – Ratten v The Queen PC 1-Jul-1971
Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Cited – Thomson v Austen 1823
Evidence of an admitted cross-debt was in part excluded: ‘We also think that the evidence which was refused was not indicative of any intention to make a compromise, for if it had been so, he would have offered some concession, some sacrifice for . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – D and C Builders Ltd v Rees CA 1966
The plaintiff builders had been chasing payment of their undisputed invoice. Knowing that the builders were in financial difficulties, the defendant offered rather less, saying that if it was not accepted, she would pay nothing. She made the payment . .
Cited – Cory v Bretton 1830
The provision in a letter that it was ‘not to be used in prejudice of my rights . . .’ was read as meaning that an apparent acknowledgement of indebtedness in the same letter was ‘clearly a conditional statement’. . .
Cited – In re River Steamer Company 1871
A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title.
Held: The letter was written in the context . .
Cited – Oliver v Nautilus Steam Shipping Co Ltd 1903
Where an employee was injured at work, but by an outside person, section 6 of the 1897 Act provides that the worker could ‘at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under . .
Cited – Unsworth v Elder Dempster Lines Ltd HL 1940
Shippers of cargo on a chartered ship brought an action against the shipowners for damage caused to the cargo by bad stowage, for which the shipowners were responsible. The cargo was shipped under charterers’ bills of lading, so that the contract of . .
Cited – Cook v Swinfen 1966
. .
Cited – In re Brisbane City Council and White 1981
The use of the the phrase ‘without prejudice’ was ‘futile’ in the context of an originating process. . .

Cited by:
Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Cited – Framlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Applied – Shepherd Construction Ltd v Berners (BVI) Ltd and Another TCC 25-Mar-2010
The defendants sought a release from an asset freezing order, saying that there was no good reason to anticipate any dissipation of assets. An action between the parties had been settled on terms, but the defendant had not met payments. The . .
Cited – Avonwick Holdings Ltd v Webinvest Ltd and Another ChD 10-Oct-2014
Application by the claimant that certain correspondence between the parties and their solicitors in April-May 2014 should be admissible as evidence, notwithstanding that most of it was headed ‘without prejudice and subject to contract’. The . .

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Leading Case

Updated: 10 December 2021; Ref: scu.243079

Cutts v Head and Another: CA 7 Dec 1983

There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining that the judge had failed to take into account an offer of settlement made by him before trial.
Held: The principles of Calderbank should be of general application, and not just within matrimonial proceedings.
Oliver LJ discussed the attempt to apply the without prejudice rule: ‘That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151, 156, be encouraged fully and frankly to put their cards on the table. The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’
The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence ‘without prejudice’ to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.’
and ‘As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused can only encourage settlement whilst, on the other hand, it is hard to imagine anything more calculated to encourage obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever may be offered to him even if it is as much as or more than everything to which he is entitled in the action.’

Oliver LJ, Fox LJ
[1984] Ch 290, [1983] EWCA Civ 8, [1984] 2 WLR 349, [1984] 1 All ER 597
Bailii
England and Wales
Citing:
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Scott Paper Co v Drayton Paper Works Ltd 1927
Parties to litigation should ‘be encouraged fully and frankly to put their cards on the table.’ . .
Cited – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Hoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – Stotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
Cited – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Potter v Potter FD 1982
The court considered the admissibility of without prejudice correspondence on costs decisions. . .
Cited – Jones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Cited – Transmountana Armadora v Atlantic Shipping 1978
Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three . .
Cited – Archital v Boot Construction 1981
. .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Computer Machinery v Drescher ChD 1983
Sir Robert Megarry VC said: ‘For reasons that will appear, I think that I should pause in my recital of the facts in order to say something about these two cases. For a long while it has been settled law that if letters written ‘without prejudice’ . .
Cited – In re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
Cited – Rabin v Mendoza and Co CA 1954
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be . .

Cited by:
Cited – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Crouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Bradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Followed – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
Cited – Framlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 10 December 2021; Ref: scu.182471

Muller and Another v Linsley and Mortimer (A Firm): CA 8 Dec 1994

The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff had sued the other shareholders but the action was settled after without prejudice negotiations. In his action against the solicitors the plaintiff pleaded that the settlement of his action against the other shareholders had represented a reasonable attempt to mitigate his loss. The solicitors then sought discovery of the without prejudice documents that had led to the settlement.
Held: Without Prejudice correspondence was to be admitted in evidence when it was not relied on for an admission. A letter which was ‘Without Prejudice’ in one action, may not be privileged in another. The relationship between the without prejudice rule and the other rules of evidence, is that the privilege operates as an exception to the general rule on admissions (itself an exception to the rule against hearsay) that the statement or conduct of a party is always admissible against him to prove any fact which is thereby expressly or impliedly asserted or admitted. The public policy aspect of the rule is not concerned with the admissibility of statements which are relevant otherwise than as admissions, ie independently of the truth of the facts alleged to have been admitted.
Hoffmann LJ said ‘Cutts v Head shows that the rule has two justifications. Firstly, the public policy of encouraging parties to negotiate and settle their disputes out of court and, secondly, an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice. In some cases both of these justifications are present; in others, only one or the other.’ and

Without prejudice correspondence was admissible to prove that a party was acting reasonably in settling a claim against a third party. The rule ‘ operates as an exception to the general rule on admissions (which can itself be regarded as an exception to the rule against hearsay) that the statement or conduct of a party is always admissible against him to prove any fact which is thereby expressly or impliedly asserted or admitted. The public policy aspect of the rule is not in my judgment concerned with the admissibility of statements which are relevant otherwise than as admissions, i.e. independently of the truth of the facts alleged to have been admitted. Many of the alleged exceptions to the rule will be found on analysis to be cases in which the relevance of the communication lies not in the truth of any fact which it asserts or admits, but simply in the fact that it was made. Thus, when the issue is whether without prejudice letters have resulted in an agreed settlement, the correspondence is admissible because the relevance of the letters has nothing to do with the truth of any facts which the writers may have expressly or impliedly admitted. They are relevant because they contain the offer and acceptance forming a contract which has replaced the cause of action previously in dispute. . . Indeed, I think that the only case in which the rule has been held to preclude the use of without prejudice communications, otherwise than as admissions, is in the rule that an offer may not be used on the question of costs; a rule which . . has been held to rest purely upon convention and not upon public policy.’

Hoffmann LJ, Swinton Thomas and Leggatt LLJ
Gazette 18-Jan-1995, Times 08-Dec-1994, [1996] PNLR 74, [1994] EWCA Civ 39
Bailii
England and Wales
Citing:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .

Cited by:
Cited – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Bradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Limited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Cited – Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Leading Case

Updated: 10 December 2021; Ref: scu.84120

Dickson Apothecary v L Coldingknows: SCCASf 15 Jul 1024

The verity of a libel being referred to a defender’s oath, the Lords found the pursuer could not exclude the defender from deponing, by a horning.
In an action pursued by Thomas Dickson apothecary, contra the L Coldingknows, where the summons being admitted to the pursuer’s probation, and referred to the defender’s oath of verity simpliciter, and at the terms assigned to that effect, the defender offering to depone, Turcu confessed, being rebel. The Lords found, That in this, and the like cases, the pursuer could not exclude the defender to depone, nor obtrude horning against him to debar him, seeing he craved his oath for his probation, and had warned him to compear to give his oath; and therefore could not refuse that whereof he himself had made election, and which was desired by him; and so the horning was not admitted, in respect it was a severe consequence to hold the defender pro confesso upon a libel which might possibly contain more than the defender was worth being so debarred, and there being no other probation; but it is to be adverted, that in all the causes almost, where parties defenders are summoned, this reason may exclude all pursuers to debar the defenders by horning; for it may be alleged, that seeing they are summoned to hear decreets given against them, or else to allege a cause in the contrary; by the same reason, they may say, that seeing he is summoned to allege a cause why the pursuer should not have his intent, he ought not to be debarred by horning to propone lawfully that which by the pursuers summons is permitted to him to do; and in these cases, the defenders not the less may be debarred by hornings.

[1024] Mor 10153
Scotland

Litigation Practice, Evidence

Updated: 10 December 2021; Ref: scu.547555

Ofulue and Another v Bossert: HL 11 Mar 2009

The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under section 29.
Held: The letter should not be admitted. Any admission in the first letter could not be treated as a continuing acknowledgement, and it could not now be relied upon. The House emphasised the vital importance of the without prejudice system.
Lord Hope said: ‘Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.’ and ‘The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.’
Lord Rodger of Earlsferry said: ‘it is that parties and their representatives who are trying to settle a dispute should be able to negotiate openly, without having to worry that what they say may be used against them subsequently, whether in their current dispute or in some different situation.’
Lord Walker of Gestingthorpe agreed with Lord Rodger and said: ‘As a matter of principle I would not restrict the without prejudice rule unless justice clearly demands it. In England the rule has developed vigorously (more vigorously, probably, than in other common law jurisdictions, and more vigorously than some overseas scholars, notably J H Wigmore approved.)’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2009] UKHL 16, [2009] 2 WLR 749, [2009] 2 All ER 223, [2009] 11 EG 119, [2009] NPC 40, [2009] 1 WLR 718, [2009] 2 Cr App R 2, [2009] 1 AC 990
Bailii, Times, HL
Limitation Act 1980& 29(2)
England and Wales
Citing:
Cited – Whiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .
Cited – Waldridge v Kennison 1794
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case. . .
Cited – Jones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Appeal from – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
Cited – Hoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
Cited – In Re Daintrey, Ex Parte Holt QBD 8-May-1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Limited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Whiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice, Evidence

Leading Case

Updated: 10 December 2021; Ref: scu.317966

O’Farrell v O’Farrell: QBD 1 Feb 2012

Applications were made for the enforcement of order obtained in Germany in family proceedings between the parties.
Held: The court re-emphasised the duty on those seeking ex parte orders to give notice, informal if necessary, to the other party and to comply with the Civil Procedure Rules

Tugendhat J
[2012] EWHC 123 (QB)
Bailii
England and Wales
Cited by:
Cited – Jeeg Global Ltd v Hare QBD 29-Mar-2012
The claimant had obtained an order restricting the defendant from asserting any kind of insolvency in the claimant. The defendant now sought the strike out of the claim as an abuse of process. He said that any such disclosure had been on one . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 December 2021; Ref: scu.451163

Palmer v Durnford Ford: QBD 1992

The plaintiff had consented to judgment for his opponent in a case against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance claims on a basis that was invalid, and their solicitors for negligence in engaging an incompetent expert. The expert persuaded the district judge to strike out the claim against him on the ground that he was immune from suit.
Held: Witnesses are immune from suit in relation to their conduct as witnesses. Mr. Simon Tuckey QC said: ‘Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all.’

Mr. Simon Tuckey QC
[1992] QB 483, [1992] 2 WLR 407, [1992] 2 All ER 122
England and Wales
Cited by:
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Negligence

Updated: 10 December 2021; Ref: scu.245756

Park v CNH Industrial Capital Europe Ltd (T/A CNH Capital): CA 24 Nov 2021

Appeal, on basis of alleged fraud, from lifting of judgment obtained in default.
Held: A party who seeks to set aside a judgment for fraud must establish that both he and the court were deceived by the party in whose favour judgment was entered.

Lady Justice Andrews
[2021] EWCA Civ 1766
Bailii
England and Wales

Litigation Practice

Updated: 10 December 2021; Ref: scu.670062

Farran v Beresford: HL 30 Aug 1843

The House considered the nature of scire facias, and in particular whether scire facias created a new right, or whether it only operated as a continuation of the original judgment. ‘The present right to receive the same’ was understood by Tindal LCJ, in an opinion adopted by the House of Lords, as ‘an immediate right without waiting for the happening of any future event’.

Lord Brougham
(1843) 10 Cl and F 319, [1843] EngR 994, (1842-43) 10 Cl and Fin 319, (1843) 8 ER 764
Commonlii
England and Wales
Cited by:
Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 December 2021; Ref: scu.244734

In Re Daintrey, Ex Parte Holt: QBD 8 May 1893

The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of composition but threatening that payment would be suspended unless the offer was accepted.
Held: The court will not permit the phrase ‘without prejudice’ to be used to exclude an act of bankruptcy. The letter was admissible. There was no dispute and no offer of compromise, so the sender could not destroy the admissibility of the letter as evidence simply by heading the letter ‘without prejudice’, the protection afforded by that phrase being limited to negotiations for compromise.
Vaughan Williams J said: ‘Moreover, we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words ‘without prejudice’ are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character.’
He stated the conditions for the application of the ‘without prejudice’ rule as follows: ‘In our opinion the rule which excludes documents marked ‘without prejudice’ has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application. It seems to us that the judge must be entitled to look at the document to determine whether the document does contain an offer of terms. Moreover we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words ‘without prejudice’ are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character.’

Vaughan Williams J
[1893] 2 QB 116, [1893] UKLawRpKQB 83
Commonlii
England and Wales
Cited by:
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 10 December 2021; Ref: scu.243127

Axis Corporate Capital UK Ltd and Others v ABSA Group Ltd and Others: ComC 2 Feb 2021

Application by the claimants for three things: (1) an interim anti-suit injunction; (2) permission, insofar as it is necessary to obtain permission, to serve the claim form and other associated documents on the defendants out of the jurisdiction; and (3) permission to serve the claim form and other documents on the defendants by alternative means.

Mr Justice Calver
[2021] EWHC 225 (Comm)
Bailii
England and Wales

Jurisdiction, Litigation Practice

Updated: 07 December 2021; Ref: scu.658134

Jirehouse Capital and Others v Beller and Another: ChD 20 Oct 2009

Peter Smith J
[2009] EWHC 2538 (Ch)
Bailii
England and Wales
Citing:
See Also – Jirehouse Capital and Another v Beller and Another ChD 16-Jan-2008
. .
See Also – Jirehouse Capital and Another v Beller and Another CA 30-Jul-2008
Appeal against refusal of order for security for costs. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2021; Ref: scu.377214

The United States Securities and Exchange Commission v Manterfield: CA 28 Jan 2009

The defendant appealed against the continuation of a world wide freezing order sought by the claimant saying that it should not be enforced as a foreign penal law. A judgment had been obtained in the US.
Held: The English court could look to examine the US judgement to see whether any part was unenforceable. If part was enforceable here, the fact that it was made as part of a judgement in a criminal judgment would not prevent that part being enforced.

Lord Justice Waller, Lord Justice Moses and Lady Justice Hallett
[2009] EWCA Civ 27, Times 18-Mar-2009, [2009] 1 Lloyd’s Rep 399, [2009] Bus LR 1593, [2009] Lloyd’s Rep FC 203, [2010] 1 WLR 172, [2009] 1 CLC 49, [2009] 2 All ER 1009
Bailii
England and Wales

Litigation Practice

Updated: 06 December 2021; Ref: scu.280170

Bellenden (formerly Satterthwaite) v Satterthwaite: CA 1948

The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

Asquith LJ
[1948] 1 All ER 343
England and Wales
Cited by:
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Approved – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – AM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
Cited – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Applied – Norbis v Norbis 30-Apr-1986
The parties disputed a settlement of property on divorce, and on appeal the court had to consider how it should approach a judgment made at the discretion of the judge at first instance.
Held: After citing Bellendon, Brennan J added: ‘The . .
Cited – In re R (A Child) CA 29-Apr-2009
The mother appealed against an order awarding residence of her two children to the paternal grandparents. . .
Cited – In re R (A Child) CA 22-May-2009
. .
Cited – Canadian Imperial Bank of Commerce v Beck CA 26-Jun-2009
. .
Cited – MHA v Secretary of State for Work and Pensions UTAA 28-Oct-2009
. .
Cited – Truter v University of Leicester and Others EAT 24-Nov-2009
EAT PRACTICE AND PROCEDURE: Postponement or stay
There was no basis for interfering with case management directions of an Employment Judge refusing a stay, nor grounds for allowing interim appeals when the . .
Cited – Macintyre v Chief Constable of Kent and others CA 24-Jul-2002
The defendants appealed against case management directions made in this defamation action. . .
Quoted – Horth v Thompson QBD 6-Jul-2010
After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.197924

Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1): ChD 25 Nov 2002

Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of Justice (although not the subject of decision) in relation to insolvency proceedings brought directly by bondholders.

Lawrence Collins J
[2002] EWHC 2503 (Ch), [2003] 1 BCLC 290
Bailii
England and Wales
Cited by:
Cited – Elektrim SA v Vivendi Holdings 1 Corp CA 24-Oct-2008
The court considered the construction of a ‘no action’ clause in a bond, under which clause only the trustee would have the right to take action to enforce it. . .
See Also – Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986 ChD 20-Dec-2002
. .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 06 December 2021; Ref: scu.178480

Instance and Others v Denny Bros Printing Ltd and Others: ChD 3 Feb 2000

The dispute arose between parties to without prejudice communications or who had obtained documents from such persons and were commercially connected with them.
Held: An implied agreement would bind them as parties or by reason of the source of the documents in their hands. The without prejudice communications were governed by an implied agreement that they will not be used in the current or any subsequent litigation between the same or related parties. It was not appropriate to leave the issue to the foreign court to decide on admissibility, and an injunction was granted against their use. ‘The present dispute arises between persons who either were parties to the original communications or have obtained the documents from persons who were such parties, and, to the extent that it be relevant, are commercially and corporately connected with such parties. If there was an implied agreement the persons before me are either bound by it as parties or must be taken to be subject to it by reason of the source of the documents in their hands. In my judgment it is very strongly arguable, and indeed probable, that the without prejudice communications are indeed governed by an implied agreement that they will not be used in the current or any subsequent litigation between the same or related parties . . It is correct in my judgment to regard the protection as extending to subsequent litigation because otherwise on the one hand the public policy recognised by Lord Griffiths and other judges and on the other hand the expectation of the parties would not be fulfilled but rather would be subverted. The position may perhaps be different in practice between two parties who are brought together for example by the circumstances of a road accident and may never have anything else to do with each other, but the holders of patents in related areas, whether or not they are to be regarded as competitors, may well, through themselves or their licensees, come up against each other in a number of different commercial circumstances giving rise, not only among the litigation-prone, to several different disputes over time, such that it cannot be assumed that one piece of litigation is the last there will ever be.’

Mr Justice Lloyd
Gazette 03-Feb-2000, Times 28-Feb-2000, [2000] FSR 869
Citing:
Cited – Bourns Inc v Raychem Corporation, Clifford Chance, Row and Maw, Latham and Watkins PatC 17-Oct-1998
Where a party sought disclosure of documents in support an application in a costs taxation, the payee could choose not to disclose, but if he did so the payer was bound by implied undertakings to use them only for the purposes of that application . .

Cited by:
Cited – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
See Also – David J Instance Ltd, David J Instance v Denny Bros Printing Ltd PatC 14-Apr-2000
. .
See Also – David J Instance Ltd and Another v Denny Brothers Printing Ltd CA 20-Jun-2001
In a case where a patent was being challenged for obviousness, the judge was not necessarily obliged to follow the structured approach recommended in the Windsurfing International case. Here the judge had gone straight to the issue at the heart of . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 06 December 2021; Ref: scu.82377

McAtee, Regina (on The Application of) v The Secretary of State for Justice: CA 20 Dec 2018

The claimant prisoner sought to challenge the statutory licence regime as it applied to indeterminate prisoners. The parties disputed whether the Court of Appeal had jurisdiction which in turn depended upon whether the claim was criminal in nature.
Held: It did not follow from the case having criminal aspects that all associated claims were a ‘criminal cause or matter’. However the seeking of judicial review of the lawfulness of the statutory regime as to a decision regarding an indeterminate life prisoner on licence remained a criminal cause of matter, and appeal to the Court of Appeal would not lie.

Sir Brian Leveson P, Davis, Lewison LJJ
[2018] EWCA Civ 2851, [2019] WLR(D) 11
Bailii, WLRD
Senior Courts Act 1981 18(1)
England and Wales

Prisons, Litigation Practice

Updated: 06 December 2021; Ref: scu.632678

Halifax Building Society v Clark: ChD 1973

In order to satisfy the requirements for obtaining statutory relief under the 1970 Act, the mortgagor had to be able to show that he was likely to be able to pay within the reasonable period referred to not only the arrears of instalments but also the principal sum due under the mortgage. Sir John Pennycuick V-C interpreted ‘any sums due under the mortgage’ in sub-section (1) restrictively as the entire mortgage debt.

Sir John Pennycuick V-C
[1973] Ch 307
Administration of Justice Act 1970 36(1)
England and Wales

Land, Litigation Practice

Updated: 06 December 2021; Ref: scu.460847

In re A (A Child) (Vulnerable Witness): FD 17 Jun 2013

Pauffley J said: ‘Once more in these long running private law proceedings it is necessary to consider competing Convention rights so as to strike the right balance between, on the one hand, achieving justice and, on the other, protecting a vulnerable young woman from the potential for further and perhaps very considerable physical as well as psychological harm. The key question is as to whether, imminently, steps should be taken which could lead to the giving, in some form or another, of oral evidence by that vulnerable individual. ‘

Pauffley J
[2013] EWHC 1694 (Fam)
Bailii
England and Wales

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.512056

AA v NA (Appeal: Fact-Finding): FD 10 Jun 2010

Mostyn J discussed the situations where an appellate court might set aside factual findings by a first instance judge: ‘In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:
(i) His conclusion was demonstrably contrary to the weight of the evidence, or
(ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.
I would include in the second category errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings.’

Mostyn J
[2010] EWHC 1282 (Fam), [2010] 3 FCR 327, [2010] Fam Law 913, [2010] 2 FLR 1173
Bailii
England and Wales
Cited by:
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.417779

A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage): FD 15 Dec 2005

Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order will, naturally, depend upon the particular circumstances of the case.’ As to the development of the power: ‘New problems will generate new demands and produce new remedies’ and ‘Just as there are, in theory, no limits to the court’s powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court’s powers when exercising the inherent jurisdiction in relation to adults.’
The jurisdiction ‘is, in substance and reality . . [and] for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children’.

Munby J
[2005] EWHC 2942 (Fam), [2006] 1 FLR 867, [2007] 2 FCR 563, [2006] Fam Law 268, (2007) 10 CCL Rep 193
Bailii
England and Wales
Cited by:
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .

Lists of cited by and citing cases may be incomplete.

Health, Children, Litigation Practice

Updated: 06 December 2021; Ref: scu.239293

Carman v Yates: ChD 2005

When a civil judge thinks a witness may be lying, he should remember that witnesses may have different reasons for lying, and effectively give himself a Lucas direction.

Charles J
[2005] BPIR 476
England and Wales
Citing:
Cited – Regina v Lucas (Ruth) CACD 1981
People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) . .

Cited by:
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 06 December 2021; Ref: scu.242122

Hart v Relentless Records Ltd, Relentless Music Publishing Ltd, Media Village PR Ltd: ChD 4 Oct 2002

The judge had informally met counsel in the corridor outside court, and advised him of the need to settle the case. The client asked the judge to recuse himself, having compromised his independence and impartiality.
Held: Such meetings were a proper part of litigation, and did much to assist avoidance of increased costs. In deciding whether to recuse himself a judge must ask whether a fair, informed and reasonable observer would consider there to be a real risk of bias. Such an observer would not so judge, and he declined to recuse himself.

The Hon Mr Justice Jacob
Times 08-Oct-2002, [2002] EWHC 1984 (Ch)
Bailii
England and Wales
Cited by:
Cited – Steadman-Byrne v Amjad and others CA 27-Jun-2007
In the course of a personal injury trial, the judge asked counsel to his room, where he said that having been conviced that the claimants were not lying, the defence had no prospect of success, and complained that ‘Insurance companies are trying to . .
Cited – IA311012013 AIT 28-Aug-2014
The appelant had sought indefinite leave to remain. He now cmplained that the judge at the fisrt tire tribunal had made a remark at the outset suggesting that he had a closed mind or had already made up his mind. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Natural Justice

Updated: 06 December 2021; Ref: scu.177382

Thane Investments Ltd and Another v Tomlinson: ChD 6 Dec 2002

The claimants had obtained an ex parte freezing order. The respondent complained that they had failed to provide full notes of the hearing as required.
Held: It was vital that those obtaining ex parte relief should comply with the requirements. A copy of the notes of the hearing had to be provided to the other party whether or not they requested them. In this case however the failure was not enough to justify the discharge of the order.

Neuberger J
Times 10-Dec-2002
England and Wales
Citing:
Cited – Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd and Others ChD 10-Nov-1999
Where a party to litigation made an ex parte application, there was a clear duty on the legal representative attending to make full notes of the hearing so that, if the opposing party sought in any way to challenge what had happened, a record would . .

Cited by:
Appeal from – Thane Investments Ltd and others v Tomlinson and others CA 29-Jul-2003
Peter Gibson LJ emphasised that in freezing order applications, ‘it is important that there should be solid evidence adduced to the Court of the likelihood of dissipation.’ He went on to say that it was not enough merely to point to some dishonesty . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2021; Ref: scu.178367

Bakewell Management Ltd v Brandwood and Others: ChD 21 Mar 2002

The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, criminal activity could not be used to found a claim of adverse possession. The claimant countered that an argument as to the doctrine of lost modern grant had not been proposed in Hanning, and that Hanning should accordingly be overruled.
Held: It was not for a High Court judge to go against a precedent set by the Court of Appeal, save in exceptional circumstances. In Hanning, particularly, leave to appeal had been refused by the House of Lords. The court was bound to find in favour of the land owner.

Mr Justice Park
Times 19-Apr-2002, Gazette 10-May-2002
Law of Property Act 1925 193(4)
England and Wales
Citing:
Doubted – Hanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .

Cited by:
Appeal from – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Land, Litigation Practice

Updated: 06 December 2021; Ref: scu.170064

Akhmedova v Akhmedov and Others: FD 28 Oct 2020

Without notice application by the wife for a search order against the tenth respondent.

The Honourable Mrs Justice Knowles
[2020] EWHC 3005 (Fam)
Bailii
England and Wales
Citing:
See Also – Akhmedova v Akhmedov and Others FD 2-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 17-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 12-Jun-2020
applications:
a) an application for disclosure by the Applicant Wife against the Tenth Respondent; and
b) an application by the Tenth Respondent for (i) disclosure from the Applicant Wife in respect of her litigation funding arrangements . .
See Also – Akhmedova v Akhmedov and Others FD 14-Aug-2020
. .
See Also – Akhmedova v Akhmedov and Others FD 18-Aug-2020
Application to vary freezing orders. . .

Cited by:
See Also – Akhmedova v Akhmedov and Others FD 4-Nov-2020
Return date of the search order and forensic imaging order granted without notice . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.656328

Doncaster Metropolitan Borough Council v Haigh and Others: FD 22 Aug 2011

Doncaster Metropolitan Borough authority (‘the local authority’) seeks to put into the public domain aspects of care proceedings under Part IV of the Children Act 1989, which, in accordance with normal practice, were heard in private.

The Rt Hon the President,
Sir Nicholas Wall
[2011] EWHC 2412 (Fam), [2011] Fam Law 1205, [2011] 3 FCR 397
Bailii
England and Wales

Children, Litigation Practice

Updated: 06 December 2021; Ref: scu.450350

Akhmedova v Akhmedov and Others: FD 12 Jun 2020

applications:
a) an application for disclosure by the Applicant Wife against the Tenth Respondent; and
b) an application by the Tenth Respondent for (i) disclosure from the Applicant Wife in respect of her litigation funding arrangements (to be heard with the Applicant Wife’s application to strike out the Tenth Respondent’s counterclaim relating to funding dated 28 February 2020), (ii) disclosure of the ‘Reviewable Documents’ provided by Mr Henderson, and (iii) disclosure of other documents on which the Applicant Wife relies.

Mrs Justice Knowles
[2020] EWHC 1526 (Fam)
Bailii
England and Wales
Citing:
See Also – Akhmedova v Akhmedov and Others FD 2-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 17-Oct-2019
. .

Cited by:
See Also – Akhmedova v Akhmedov and Others FD 14-Aug-2020
. .
See Also – Akhmedova v Akhmedov and Others FD 18-Aug-2020
Application to vary freezing orders. . .
See Also – Akhmedova v Akhmedov and Others FD 28-Oct-2020
Without notice application by the wife for a search order against the tenth respondent. . .
See Also – Akhmedova v Akhmedov and Others FD 4-Nov-2020
Return date of the search order and forensic imaging order granted without notice . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.655255

Jameson and Another v Central Electricity Generating Board and others: HL 16 Dec 1998

A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not proceed where the deceased had settled his own claim in damages.

Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Hoffmann,
Lord Hope of Craighead Lord Clyde
Times 17-Dec-1998, Gazette 03-Feb-1999, [1998] UKHL 51, [2000] 1 AC 455, [1999] 2 WLR 141, [1999] 1 All ER 193
House of Lords, Bailii
Fatal Accidents Act 1976 1(1)
England and Wales
Cited by:
Cited – Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another CA 19-May-2000
Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the . .
Explained – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Cape and Dalgleish v Fitzgerald and others HL 25-Apr-2002
The employee was dismissed. After a compromise of the claims and counter claims, the employers sought damages from their accountants for failing to spot the losses. The accountants then sought to recover the damages awarded from the employee, not . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 05 December 2021; Ref: scu.158983

Hamilton and others v Allied Domecq Plc (Scotland): HL 11 Jul 2007

The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it in the way promised. The company failed. At first instance the judge found for the pursuers, but the defenders succeeded on reclamation.
Held: The pursuers had not done enough to show the misrepresentation alleged, and the claim failed. A critical finding of fact had been made which was unsupported by the evidence.

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2007] UKHL 33, 2007 SC (HL) 142
Bailii
Scotland
Citing:
Appeal From – John Stewart Hamilton and others v Allied Domecq Plc OHCS 1-Aug-2003
. .
Cited – Peek v Gurney HL 31-Jul-1873
A prospectus for an intended company was issued by promoters who were aware of the disastrous liabilities of the business of Overend and Gurney which the company was to purchase. The prospectus made no mention of a deed of arrangement under which . .
Cited – Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd CA 1990
A loan was to be made. An agent of the borrower came to know of the fraudulent nature of the loan, but said nothing.
Held: A failure to disclose a known fraud may itself amount to a misrepresentation, but nondisclosure (whether dishonest or . .
Cited – Payabi and Another v Armstel Shipping Corporation and Another QBD 1-Apr-1992
A party had been wrongly added in breach of limitation under Hague Convention. There should have been no relation back. Hobhouse J considered the effect of the 1980 Act: ‘But it is clear that Ord. 20, r. 5 must now be read with the [1980] Act and is . .
Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .

Lists of cited by and citing cases may be incomplete.

Company, Torts – Other, Litigation Practice

Updated: 05 December 2021; Ref: scu.254549

Russell v Stubbs Limited: HL 3 Apr 1913

The plaintiff said that the defendants, publishers of a trade magazine providing inter alia credit references, had slandered it. The defendants appealed against an order requiring it to provide details of others to whom the slander had been published. The parties also disputed the meanings claimed.
Held: Lord Kinnear said: ‘The law is perfectly well settled. Before a question of libel or slander is submitted to a jury the Court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter of law for the Court. If they are so, and also of a harmless meaning, it is a question of fact for a jury which meaning they did convey in the particular case.’ and ‘In . . applying this doctrine [in Capital and Counties Bank] . . to the practice of Scotland, it is necessary to substitute for the words ‘facts properly in evidence’ the words ‘properly averred on record’. This is because in Scottish practice the question of libel or no libel, so far as it is a question for the Court only, is not left to be raised at the trial, but must be decided at the stage at which the interlocutor now under review [approving issues] has been pronounced.’
Lord Shaw of Dunfermline said: ‘I am of opinion that this innuendo imports into the erroneous entry more than it can reasonably bear. For I think the test in these cases is this:- Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural or necessary interpretation of its terms? It is productive, in my humble judgment, of much error and mischief to make the test simply whether some people would put such and such a meaning upon the words, however strained or unlikely that construction may be. . . To permit . . a strained and sinister interpretation, which is thus essentially unjust, to form a ground for reparation, would be, in truth, to grant reparation for a wrong which had never been committed.’
Lord Loreburn LC said that the question was one of discretion ‘for it is undoubted that such a discovery can in some cases be allowed’ and ‘This is a case in which a specific libel is alleged – in which the matter that is arrived at by discovery is wholly in the knowledge of the defendants. There is a prima facie case of the publication of the libel complained of by the defendants. A probability, from the nature of the business carried on by the defendants, that the statements would be made or sent to all who asked for them if they were subscribers, is established in fact by the circumstance that the defendants did make the same communication to the plaintiffs’ solicitors when they asked for it. Under these circumstances I think, as I have said, that this is a case in which the discretion used by the Court of Appeal was perfectly sound, and it seems to me that I ought to say so.’

Lord Kinnear, Lord Loreburn, Lord Shaw of Dunfermline
, [1913] UKLawRpAC 13, (1913) AC 386
Commomlii
Scotland
Citing:
Cited – The Capital and Counties Bank Limited v George Henty and Sons HL 1882
The defendant wrote to their customers saying ‘Henty and Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.’ The contents of the circular became known and there was a . .
Appeal from – Russell v Stubbs Ltd CA 1912
The defendants published ‘Stubbs’ Weekly Gazette’ providing credit reports on persons engaged in trade to their subscribers. The plaintiff pleaded that the defendant had published a report as to the plaintiff’s financial position to a named person . .

Cited by:
Cited – Mccann v Scottish Media Newspapers Ltd SCS 18-Feb-1999
Three articles which appeared in one edition of a newspaper had to be read together and treated as ‘constituting a whole’ for the purposes of determining meaning, where the first ended with a cross-reference to the second, and the second ended with . .
Distinguished – Barham v Lord Huntingfield CA 1913
The plaintiff pleaded that on a day at the end of 1910 or early in 1911 the defendant published specified defamatory words to Le Grys and further during the years 1910, 1911 and 1912 the defendant published similar words. The slander imputed immoral . .

Lists of cited by and citing cases may be incomplete.

Scotland, Defamation, Litigation Practice

Updated: 05 December 2021; Ref: scu.236347

Beall v Smith: CA 6 Dec 1873

Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by inquisition, and therefore incapable of invoking the protection of the Court, that protection may in proper cases, and if and so far as may be necessary and proper, be invoked by any person as his next friend.
It is not by reason of the incompetency, but notwithstanding the incompetency, that the Court of Chancery entertains the proceedings.’
Otherwise Beal v Smith

Lord Justice James
(1873) LR 9 Ch App 85, [1873] UKLawRpCh 117, (1873-1874) LR 9 Ch App 85
Commonlii
England and Wales
Cited by:
Cited – Lee-Parker v Izzett (1) ChD 1971
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 05 December 2021; Ref: scu.259623

Bank of England v Vagliano Brothers: HL 5 Mar 1891

The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations deriving from the antecedent law.
Lord Watson said: ‘The decision of the Queen’s Bench in Robarts v. Tucker 16 QB 560 has, ever since its date, been accepted in mercantile practice as determining the obligations incumbent upon bankers who agree to retire acceptances on account of their customers. It casts upon them the whole duty of ascertaining the identity of the person to whom they make payment with the payee whose name is upon the bill. They may pay in good faith to the wrong person, in circumstances by which the acceptor himself or men of ordinary prudence might have been misled; but they cannot take credit for such a payment in any question with the acceptor. It has been said by one of the learned Judges that the rule is a harsh one, and it is possible that in some circumstances it may operate harshly; but it appears to me to be settled beyond dispute, and I see no reason for suggesting any doubt that it puts a reasonable construction upon the contract constituted by the agreement of the banker to pay his customers’ acceptances when they fall due. In the absence of any special stipulations it construes the arrangement so constituted as importing that, on the one hand, the customer is to furnish or repay to the banker the funds necessary to meet his obligations as acceptor; and that, on the other hand, the banker undertakes to apply the money provided by the customer, or advanced on his account, so as to extinguish the liability created by his acceptance. Accordingly, no payment made by the banker which leaves the liability of the acceptor undischarged can be debited to the latter.’
Lord Herschell said: ‘I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.’ and ‘If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even an obsolete proceeding such as a demurrer to evidence.’
Lord Halsbury LCJ said: ‘It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed.’

Lord Herschell, Lord Halsbury LCJ, Lord Watson, Lord Bramwell
[1891] AC 107, (1891) 60 LJQB 145, (1891) 7 TLR 333, [1891] UKLawRpAC 6
Commonlii
Bills of Exchange Act 1882 7(3)
England and Wales
Citing:
Cited – Robarts And Others v Tucker 1-Feb-1851
. .

Cited by:
Cited – Regina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
Cited – O’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Constitutional

Updated: 04 December 2021; Ref: scu.464675

Broxton v McClelland: CA 31 Jan 1995

The defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer’s purpose was to oppress and ultimately bankrupt the defendants, and for that reason the action should be struck out as an abuse of process.
Held: The proceedings should not be struck out since the plaintiffs were not seeking to achieve a collateral advantage beyond the scope of the action. The motive for bringing proceedings is irrelevant, and a plaintiff is entitled to seek the defendant’s financial ruin if that would be the consequence of properly prosecuting a legitimate claim.
Simon Brown LJ extracted the following principles from earlier authorities: ‘(1) Motive and intention as such are irrelevant . . : the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. . (2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court’s processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process:
(i) The achievement of a collateral advantage beyond the proper scope of the action – a classic instance was Grainger -v- Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship’s register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ’s judgment in Goldsmith -v- Sperrings Limited at page 503 D/H.
(ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.
(3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.’

Simon Brown LJ
Unreported, 31 January 1995, [1995] EMLR 485
England and Wales
Citing:
See Also – Broxton v McClelland 6-Nov-1992
. .
Cited – Grainger v Hill CEC 1838
Misuse of Power for ulterior object
D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned . .
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
Cited – Speed Seal Ltd v Paddington CA 1985
The court was asked whether the defendant should be permitted to add to his pleadings a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants’ business, and not for the protection of any . .

Cited by:
Cited – Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 04 December 2021; Ref: scu.384387

(Unnamed) Service On Overseas Company: CA 24 Mar 1993

Service on an overseas company must accord with RSC 10(1)(7) and 65(3)(1) and Companies Act 1985 s695. Where an overseas company had an office in the UK, the writ had to be served within the UK, but not on the company at its offices, but rather on the person nominated to the registrar of companies to receive such service.

Gazette 24-Mar-1993
Companies Act 1985 695
England and Wales

Litigation Practice, Company

Updated: 04 December 2021; Ref: scu.77562

Harb v HRH Prince Abdul Aziz: ChD 9 Jun 2014

The Defendant applies under CPR 11.1 for an order declaring that the court has no jurisdiction to try this claim against him on the grounds that the claim is barred by the defence of state immunity under the State Immunity Act 1978.

Rose J
[2014] EWHC 1807 (Ch), [2014] 1 WLR 4437, [2015] 1 All ER 77, [2014] WLR(D) 248
Bailii, WLRD
Civil Procedure Rules 11.1, State Immunity Act 1978
England and Wales

Constitutional, Litigation Practice

Updated: 04 December 2021; Ref: scu.526361

Contrarian Funds Llc v Lomas and Others: ChD 23 May 2014

The court considered the approach to be taken on applications for extensions of time to apply to challenge refusals of proof of debt in an insolvency, and how to test applications for relief from sanctions.
Held: The 1986 Rules which provided for extensions to time given for compliance with the Rules were not limited in their application to those concerned with litigation matters.

David Richards J
[2014] EWHC 1687 (Ch), [2014] WLR(D) 233
Bailii, WLRD
Insolvency Rules 1986
England and Wales

Insolvency, Litigation Practice

Updated: 04 December 2021; Ref: scu.526245

Lloyd v Google LLC: SC 10 Nov 2021

No damages for Loss of Control of Data

The respondent has issued a claim alleging that the appellant (‘Google’) has breached its duties as a data controller under the DPA to over 4m Apple iPhone users during a period of some months in 2011- 2012, when Google was able to collect and use their browser generated information. The respondent sued on his own behalf and on behalf of a class of other residents in England and Wales whose data was collected in this way. He applied for permission to serve the claim out of the jurisdiction. Google opposed the application on the grounds that (i) the pleaded facts did not disclose any basis for claiming compensation under the DPA and (ii) the court should not in any event permit the claim to continue as a representative action.
Whether the respondent should have been refused permission to serve his representative claim against the appellant out of the jurisdiction (i) because members of the class had not suffered ‘damage’ within the meaning of section 13 of the Data Protection Act 1998 (‘DPA’); and/or (ii) the respondent was not entitled to bring a representative claim because other members of the class did not have the ‘same interest’ in the claim and were not identifiable; and/or (iii) because the court should exercise its discretion to direct that the respondent should not act as a representative.

Lord Reed P, Lady Arden, Lord Sales, Lord Leggatt, Lord Burrows
UKSC 2019/0213, [2021] UKSC 50, [2021] 3 WLR 1268
Bailii, Pailii Press Summary, Bailii Issues and Facts
Data Protection Act 1998, Civil Procedure Rules 19.6
England and Wales

Information, Jurisdiction, Litigation Practice

Updated: 04 December 2021; Ref: scu.669785

Bank St Petersburg OJSC and Another v Arkhangelsky and Others: CA 14 May 2014

The power to grant a world-wide anti enforcement (as opposed to an anti-suit) injunction was available to the courts, though its exercise should be exceptional.

Longmore, Kitchin, McCombe LJJ
[2014] EWCA Civ 593, [2014] 1 WLR 4360, [2014] WLR(D) 215
Bailii, WLRD
England and Wales

International, Litigation Practice

Updated: 03 December 2021; Ref: scu.525615

Hallam Estates Ltd and Another v Baker: CA 19 May 2014

‘The paying parties appeal against a decision of the High Court reversing a decision of the costs judge, whereby he declined to set aside his earlier order granting an extension of time for serving the points of dispute. The principal issues in this appeal are whether the costs judge was dealing with relief from sanctions and whether he exercised his case management discretion in a proper manner.’
Held: The judge ought not to have interfered with the costs judge’s exercise of discretion. The appeal was allowed. An application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period.

Jackson, Lewison, Christopher Clarke LJJ
[2014] EWCA Civ 661, [2014] 4 Cost LR 660
Bailii
Civil Procedure Rules 1998 47.9
England and Wales
Citing:
Cited – Robert v Momentum Services Ltd CA 11-Feb-2003
The claimant appealed against an order refusing an extension of time for service of her particulars of claim. She had made the application before the period expired.
Held: The rules made a clear distinction between applications made before . .
Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .

Cited by:
Cited – Lachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 03 December 2021; Ref: scu.525626

Tchenguiz and Another v Director of The Serious Fraud Office: ComC 29 Apr 2014

In an associated action, documents had been disclosed by the current respondent. The claimant sought an order allowing the documents to be released to a lawyer in support of consideration of taking action against third parties. The third party involved, having been given notice had no objection to the proposed release.

Eder J
[2014] EWHC 1315 (Comm), [2014] WLR(D) 186
Bailii, WLRD
Civil Procedure Rules 31.22
England and Wales

Litigation Practice

Updated: 03 December 2021; Ref: scu.524651

Sukhoruchkin and Others v Van Bekestein and Others: CA 31 Mar 2014

Appeal from an order dismissing an application by the appellants, the claimants in the proceedings, to continue until judgment or further order a proprietary injunction and worldwide freezing injunction granted on the appellants’ ex parte application.

Sir Terence Etherton, Macur LJ, Sir Timothy Lloyd
[2014] EWCA Civ 399
Bailii
England and Wales

Litigation Practice

Updated: 02 December 2021; Ref: scu.523350