O’Brien v Chief Constable of the South Wales Police: CA 23 Jul 2003

The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal proceedings were made. In general, the greater the putative force of the evidence the less ready a court should be to exclude it, but the court might do so where it might disproportionately affect the length of the trial, and particularly so in jury trials. The judge had properly directed himself in accordance with the CPR, and referred expressly to the discretion he was given and had exercised that discretion. Appeal dismissed.
There is a two stage test for the admission of similar fact evidence: ‘It follows that in civil proceedings, as opposed to criminal proceedings, the first question to be asked is whether the similar fact evidence is admissible. To be admissible it must be logically probative of an issue in the case, and the first part of the House of Lords’ test in P must be applied to exclude evidence which is not sufficiently similar to the evidence in the case before the court. At this stage the inquiry must be fact-sensitive . . Once it is decided that the evidence is admissible, the court must then ask itself whether it ought, in its discretion, to refuse to allow it to be admitted (and if it is of that view it should remove the contention from the party’s statement of case, or refuse to allow an amendment to include it, on the basis that an allegation which a party cannot prove ought not to form a part of its case). In deciding how to exercise its discretion, the matters listed in CPR 1(2) must loom large in the court’s deliberations. In principle, the stronger the probative force of the similar fact evidence, the more willing the court should be not to exclude it, everything else being equal. On the other hand, the court should have a tendency to refuse to allow similar fact evidence to be called if it would tend to lengthen the proceedings and add to their cost or complexity unless there are strong countervailing arguments the other way . . ‘

Lord Justice Brooke Lord Justice May Lord Justice Mantell
[2003] EWCA Civ 1085, Times 22-Aug-2003, Gazette 02-Oct-2003
Bailii
Civil Procedure Rules 32.1(2)
England and Wales
Citing:
CitedMakin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
CitedRegina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedRex v Smith 1915
. .
CitedRegina v Straffen CCA 20-Aug-1952
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions . .
CitedRegina v Venn CACD 1-Feb-2003
The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and . .
CitedRegina v Z (Prior acquittal) HL 22-Jun-2000
The defendant on a charge of rape had been tried and acquitted of the rape of different women on three previous occasions in three separate trials. The prosecution wished to call those three complainants to give similar fact evidence in support of . .
CitedRegina v H (Evidence: Corroboration) HL 25-May-1995
The fact that there may have been a possibility of collusion is not sufficient to stop the admission of similar fact evidence by way of corroboration. ‘ . . the function of the trial judge is not to decide as an intellectual process whether the . .
CitedMood Music Publishing Co v De Wolfe Ltd CA 1976
The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant . .
CitedRegina v Isleworth Crown Court ex parte Marland Admn 28-Oct-1997
A previous conviction of the defendant for a drugs related offence was admissible on a civil application for the forfeiture of cash said to represent the proceeds of drug trafficking under the section 43(1). The court observed that the circumstances . .
CitedBerger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
CitedMetropolitan Asylum District Managers v Hill HL 7-Mar-1881
There was an allegation that the managers had been committing an actionable nuisance, alternatively that they had been negligent in and about the construction and maintenance of a hospital for small-pox patients in Hampstead. The trial judge had . .
CitedSattin v National Union Bank Ltd CA 21-Feb-1978
The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed . .
CitedKirkup v British Rail Engineering Ltd CA 1983
Where interrogatories are administered they should be drafted with considerable rigour because if they are so widely drawn as to be vague they may be regarded as oppressive. . .
CitedThorpe v Chief Constable of Greater Manchester Police CA 1989
The plaintiff was arrested at a demonstration, charged with obstructing the highway and convicted before the magistrates. His conviction was quashed by the Crown Court on appeal. He sued for assault, unlawful arrest, false imprisonment and malicious . .
CitedNaylor v Preston Health Authority CA 1987
The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are ‘playing with all the cards face up on the table’ the . .
CitedJoy v Phillips Mills and Co Ltd CA 1916
Circumstantial evidence of ‘the habits and ordinary doings’ may be admissible.
Phillimore LJ said: ‘Wherever an inquiry has to be made into the cause of the death of a person, and, there being no direct evidence, recourse must be had to . .
CitedSteel v Commissioner of the Metropolitan Police 10-Feb-1993
The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the . .
CitedGrobbelaar v Sun Newspapers Ltd CA 9-Jul-1999
With the new Civil Procedure Rules, it was no longer correct that a court could not exclude evidence which was relevant, on the grounds that its probative value was outweighed by its prejudicial effect. The court now has full power and discretion to . .
CitedRegina v Edwards CACD 1991
The appellant was convicted of robbery with a firearm and sentenced to 14 years. The evidence included police evidence of his confessions in interview. He challenged the veracity of the interview notes, alleging that the police officers concerned . .
CitedRegina (on the Application of O’Brien, Hickey, Hickey) v Independent Assessor QBD 16-Apr-2003
The claimants were to be awarded damages for having been wrongly imprisoned for many years. The respondent was to calculate the award. They complained that he had refused to particularise the award to identify and itemise non-pecuniary loss.
Cited by:
CitedPolanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Appeal fromO’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
CitedJP Morgan Chase Bank and others v Springwell Navigation Corporation ComC 14-Mar-2005
The defendants had invested money through the claimants, but had suffered severe losses. The claimants sought a declaration that they had no liability for such losses. The defendants counterclaimed that the claimants were liable in negligence, . .

Lists of cited by and citing cases may be incomplete.

Evidence, Civil Procedure Rules

Updated: 28 November 2021; Ref: scu.184872

Kenny and Others v Abubaker and Others: CA 23 Oct 2012

The defendant landlord sought to appeal against an order that he pay to the respondent tenants a penalty under the 2004 Act of three times the tenancy deposit. The court was now asked whether there was has any right to have set aside a judgment reached on the merits, but in his absence.
Held: Such situations are always fact senstitive, but here: ‘the respondents, who were flat-sharing, paid a very substantial amount by way of rent deposit in respect of a property which they occupied for only some five months, and they have still not received any repayment of that money. By the time the claim was adjudicated . . the respondents had already waited some 14 months for the recovery of what to them was no doubt a substantial amount.’ It was quite impossible to say that the judge had erred.

Hallett, Etherton LJJ, Dame Janet Smith
[2012] EWCA Civ 1962
Bailii
Housing Act 2004 214(4), Civil Procedure Rules 27.11(3)(a)
England and Wales
Citing:
CitedShocked and Another v Goldschmidt and Another CA 4-Nov-1994
A party’s failure to appear at the trial implied that he had made certain choices which he was not to be allowed to go back on when seeking to set aside any judgment made. . .
CitedBrazil v Brazil CA 31-Jul-2002
The defendant appealed against an order for rectification of the registered title to land he occupied, and for which he had had a possessory title. The order had been made in his absence.
Held: A ‘good reason’ for non attendance at a hearing . .
CitedEstate Acquisition and Development Ltd v Wiltshire and Another CA 4-May-2006
The defendants appealed a decision that they had no sufficient reason for not attending court on the day of the trial.
Held: The fact that the defendants had a continuing commercial relationship with the claimants was not enough to justify an . .
CitedBank of Scotland v Pereira and Others CA 9-Mar-2011
The mortgagor sought to appeal against a mortgagee’s possession order. The Court of Appeal considered the interaction between an application under CPR rule 39.3 to set aside a default judgment and an application for permission to appeal under CPR Pt . .
CitedGladehurst Properties Ltd v Hashemi and Another CA 19-May-2011
Gladehurst had let the property to the two tenants under an assured shorthold tenancy. They paid a deposit, which it retained and never paid into the deposit scheme. The tenancy came to an end when the tenants vacated the property, after which . .

Lists of cited by and citing cases may be incomplete.

Housing, Civil Procedure Rules

Updated: 17 November 2021; Ref: scu.513715

Clarke v Cognita Schools Ltd (T/A Hydesville Tower School): ChD 1 Apr 2015

The claimants sought to have set aside statutory demands served to enforce judgmens, they said under a discrepancy. The order refusing their application should they said, have notified them of their right to appeal.
Held: None of the applicable rules expressly required otification that an appeal was available.

Newey J
[2015] EWHC 932 (Ch), [2015] WLR 3776, [2015] 2 All ER (Comm) 663, [2015] BPIR 444, [2015] WLR(D) 164, [2015] 1 WLR 3776, [2016] 1 All ER 477
Bailii, WLRD
Insolvency Act 1986 264, Insolvency Rules 1986, Civil Procedure Rules 3.3(5)
England and Wales

Insolvency, Civil Procedure Rules

Updated: 12 November 2021; Ref: scu.545433

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 time to accept the offer.
Held: There is no definition of mental capacity of universal application, but rather the issue of capacity must be looked at in the context of each decision to be made. A person may be capable in law of one kind of decision, but not of another. There was no precedent case dealing with the capacity to conduct and settle proceedings. A person may have that capacity but not necessarily the capacity to administer an award once received. A medical expert asked to advise, should answer against the particular background issue. The issue might be properly addressed in the court forms.
Capacity should be judged in a common sense way, bearing in mind the need to allow people the right to manage their own affairs. The test under the Civil Procedure Rules provided the need for a party to be able to understand the issues, with such professional assistance as was appropriate. A person is not to be regarded as incapable of managing his affairs because, in order to do so, he will need to take advice, or because he may not take it, when given, or because he is vulnerable to exploitation, or at risk of taking rash or irresponsible decisions.
Kennedy LJ said: ‘What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White’s case [White v Fell (unreported) 12th November 1987), capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.’
Chadwick LJ said: ‘English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself . .
The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained . .
The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation . .
For the purposes of Order 80 – and, now, CPR Pt 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).’

Lord Justice Potter, Lord Justice Kennedy, Lord Justice Chadwick
Times 28-Dec-2002, [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5
Bailii
Civil Procedure Rules 21, Rules of the Supreme Court 80, Mental Health Act 1983
England and Wales
Citing:
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedRe Cumming CA 1852
Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his . .
CitedIn re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
CitedRe C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
CitedWhite v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
CitedW v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
CitedKirby v Leather CA 1965
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
CitedBall v Mallin HL 1829
A person must have the necessary mental capacity if he is to execute a voluntary deed. The House upheld a direction to the jury that what was required was that a person ‘should be capable of understanding what he did by executing the deed in . .
CitedCharles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
CitedMolton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
CitedDurham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
CitedImperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
CitedManches v Trimborn 1946
The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction. . .
CitedIn re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
CitedGibbons v Wright 1954
(High Court of Australia) Sir Owen Dixon discussed the principle that mental capacity at law varied with the transaction at issue: ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which . .
CitedMason v Mason 1972
The court considered the mental capacity required of somebody to give their consent to a decree of divorce. . .
CitedIn Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
CitedRe K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
CitedBeal v Smith 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 . .
CitedHart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
CitedIn Re CAF 1962
When considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to the complexity and importance of that person’s property and affairs. . .
CitedIn re S (F G) (Mental Health Patient) 1973
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act . .

Cited by:
CitedPhillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
CitedDixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedSheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
See AlsoMasterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
CitedA v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
CitedE v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
CitedBailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
AppliedLindsay v Wood QBD 16-Nov-2006
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
CitedS v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
CitedIn 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 . .
CitedMcFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
CitedHaithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
CitedDunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
CitedBailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
CitedDunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 11 November 2021; Ref: scu.178553

Sayers v Clarke Walker (A firm): CA 14 May 2002

In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was provided in the rules: ‘[I]n cases where the arguments for granting or refusing an extension of time were otherwise evenly balanced, a court will have to evaluate the merits of the proposed appeal in order to form a judgment on what the defendants will be losing if time is not extended . . The consequences of the new requirement for permission to appeal is that if other factors militate towards the refusal of an extension of time, the likely prospects of success will have to be weighed in the balance. In other words the consequence of the appellants’ failure to comply with the rule will be more serious for them if the court thinks that it is more probable than not that their appeal will succeed if it is allowed to proceed than if its prospects of success are smaller, even though they just pass the threshold at which it can be said that they are ‘real’ rather than fanciful.’

Lord Justice Brooke
Times 03-Jun-2002, [2002] EWCA Civ 645, [2002] 3 All ER 490, [2002] 1 WLR 3095, [2002] CP Rep 61
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
See AlsoSayers v Clarke Walker (A Firm) CA 10-Jul-2002
. .
See AlsoSayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .

Cited by:
CitedPrice v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
See AlsoSayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .
See AlsoSayers v Clarke Walker (A Firm) CA 10-Jul-2002
. .
CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
CitedHeath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
CitedKaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.170309

Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd: TCC 6 May 2010

The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The claimant had originally pleaded reliance on the defendant’s stadard terms but now sought to amend to say that the standard terms were not incorporated.
Held: The claim succeeded.
The longer a party took after a factual position became clear to withdraw an admission, the slower the court will be to allow it. In this case the evidence for the terms not being incorporated was not strong, and it would not be an injustice to the claimants to refuse the associated amendment so shortly beore the trial.
The 1977 Act did apply, the parties were not of equal bargaining power, there was no inducement to accept the standard terms, and there was no long course of dealing such as to raise an inference that the defendant’s terms were known.
This was not bespoke software. A purchaser would come to know whether the software was adequate only after seeing the manuals, but these were not made available unil after the contract was signed.
The company varied its prices continually so as to maximise occupancy, and the practical difficulties in operating the defendant’s software limited the hotel’s ability to maximise its occupancy. Judgment accordingly.

Toulmin QC J
[2010] EWHC 965 (TCC)
Bailii
Civil Procedure Rules, Unfair Contract Terms Act 1977 3 11(1)
England and Wales
Citing:
CitedWatford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
CitedBraybrook v The Basildon and Thurrock University NHS Trust 7-Oct-2004
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Contract

Updated: 11 November 2021; Ref: scu.412291

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Human Rights, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.167729

Kojima v HSBC Bank Plc: ChD 22 Mar 2011

The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in person, but had since been advised that he might have a defence to the debt claim.
Held: The defendant’s appeal failed. To the extent that there exists any jurisdiction in the court to review its own final order, that is not to be justified on the alternative grounds first enunciated by Patten J, and approved in Collier v. Williams, in the context of procedural or other non-final orders, and once the court has finally determined a case, or part of a case, considerations of the type first identified by Patten J in Lloyds v. Ager-Hanssen will generally be displaced by the much larger, if not indeed overriding, public interest in finality, subject of course to the dissatisfied party’s qualified right of appeal. The judgment had been final, and the separate regime for setting aside judgments in default did not justify the different treatment of them in thses circumstances.

Briggs J
[2011] EWHC 611 (Ch), [2011] 13 EG 106, [2011] 3 All ER 359
Bailii
England and Wales
Citing:
CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedLloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
CitedCollier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
CitedIndependent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 14-Dec-2010
An application was made under Part 3.1(7) to vary an earlier final order made by the judge after a trial, on the application of the wife of one of the defendants whose potential interest in funds subject to the judge’s order had been overlooked by . .
CitedRoult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .
CitedEdwards v Golding and others CA 3-Apr-2007
The claimant appealed against an order that his claim in defamation had failed for limitation, the judge having held that time ran from publication even though the claimant did not know the identity of the author.
Held: The appeal was . .
CitedSimms v Carr ChD 7-Feb-2008
Appeal against withdrawal of order for security for costs. Morgan J explained one type of circumstance (judge misled) justifying re-opening an order: ‘The second case referred to by Patten J is where the court does not have a correct understanding . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Leading Case

Updated: 11 November 2021; Ref: scu.430747

Masri v Consolidated Contractors International Co Sal and Others: HL 30 Jul 2009

The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside the rule-maker’s power.
Held: Even though the rule-making power is wide enough to enable rules to be made relating to the examination of an officer who is outside the jurisdiction, the presumption against extra-territoriality still applies when considering the scope of CPR 71. In the event, CPR 71 does not contemplate an application and order in relation to an officer outside the jurisdiction. CPR 71 does not enable an order for examination to be made against an officer who is outside the jurisdiction, and CPR 6 provides no basis for service out of the jurisdiction of any such order, had it been possible to make one.

Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] UKHL 43, Times 13-Aug-2009, [2009] 2 BCLC 382, [2009] Bus LR 1269, [2009] 4 All ER 847[2009] 4 All ER 847, [2009] 3 WLR 385, [2009] CP Rep 47, [2009] 2 CLC 366, [2010] BCC 25, [2009] 2 Lloyd’s Rep 473, [2010] 1 AC 90, [2009] BPIR 1029, [2010] 1 All ER (Comm) 220, [2009] 4 All ER 847
Bailii
Civil Procedure Rules 71, Civil Procedure Act 1997 81
England and Wales
Citing:
See AlsoMasri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See AlsoMasri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See AlsoMasri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See AlsoMasri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See AlsoMasri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
See AlsoMasri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another ComC 23-May-2008
Application for interpretation of a receivership order. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
See AlsoMasri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
MentionedDickson v Neath and Brecon Railway Co 1869
. .
CitedThe ‘Zollverein’ (C H Fanichen, Master) 19-Apr-1856
Collision on high seas between a British and foreign vessel. The former not bound by statute.-A foreigner cannot set up against a British vessel with which she has been in collision the British vessd’s violation of British statute law on the high . .
CitedEx parte Blain; In re Sawers CA 1879
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the . .
MentionedClark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
See AlsoMasri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
CitedBritish South Africa Company v Companhia de Mocambique HL 1893
Two companies, one Portuguese, the other British and controlled by Cecil Rhodes, were in dispute about a large territory called Manica. The Portuguese company complained that they owned lands and mineral rights in Manica yet the British company had . .
CitedIn re Grosvenor Hotel, London (No 2) CA 1964
Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to . .
CitedHolmes v Bangladesh Biman Corporation HL 1989
Mr Holmes was killed when the defendant’s aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under . .
Appeal fromMasri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
CitedGeneral Mediterranean Holdings SA v Patel and Another QBD 19-Jul-1999
The new Civil Procedure Rules were ultra vires and invalid insofar as they purported to remove any right of a solicitor’s client to assert his right of confidence as against his solicitor. The solicitor was therefore unable in this case to defend . .
CitedAiden 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 . .
CitedIn Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker CA 22-Feb-1993
The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would . .
CitedComninos v Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA 12-Oct-1999
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . .
CitedTheophile v Solicitor-General HL 1950
The House was asked as to the legitimacy of making bankrupt, on the basis of debts unpaid in respect of his English trading, a foreigner who had left the jurisdiction.
Held: A business continues until sums due are collected and all debts paid. . .
CitedInterpool Ltd v Galani CA 1988
The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under . .
CitedUnion Bank of Finland Ltd v Lelakis 1997
Proceedings had been served within the jurisdiction under submission to jurisdiction clauses contained in the guarantees upon which suit was brought against the defendant. However service abroad was objected to.
Held: Order 11, rule 9(4) was . .
CitedIn re Aktiebolaget Robertsfors and La Societe Anonymes des Papeteries de l’AA CA 1910
The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices.
Held: The power was only exercisable in situations where service out of a writ was permissible under . .
CitedIn re Liddell’s Settlement Trusts CA 1936
The Court upheld an injunction issued against Mrs Liddell who was not a party to the proceedings and who had taken her children to the United States. When granting an injunction, the court should operate on the basis that it will be obeyed, and not . .
CitedVitol Sa v Capri Marine Ltd ComC 29-Feb-2008
The court examined the scope of CPR 6.30(2) in the context of an application for service on an officer resident in Greece of an order for his examination under CPR 71.
Held: CPR 6.30(2) was concerned with documents requiring to be served on . .
MentionedDemirel v TMSF CA 26-Jul-2007
. .
MentionedFonu v Demirel and Another ChD 21-Dec-2006
. .
See AlsoMasri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .
See AlsoMasri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .

Cited by:
See AlsoMasri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See AlsoMasri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See AlsoConsolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See AlsoConsolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See AlsoMasri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
CitedBilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 11 November 2021; Ref: scu.368928

Kier Regional Ltd (T/A Wallis) v City and General (Holborn) Ltd and others: TCC 17 Oct 2008

kier_cityTCC2008

The claimant sought to make final an interim third party debt order. The defendants sought a stay of the enforcement.

Coulson J
[2008] EWHC 2454 (TCC)
Bailii
Civil Procedure Rules 72
Citing:
CitedRoberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
See alsoKier Regional Ltd (T/A Wallis) v City and General (Holborn) Ltd TCC 6-Mar-2006
. .

Cited by:
CitedShaw and Another v Massey Foundation and Pilings Ltd TCC 12-Mar-2009
The appellants had argued that they were not subject to the construction arbitration system because they were residential occupiers. They now said that as consumers vis a vis the construction contract. . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 11 November 2021; Ref: scu.277755

Daltel Europe Ltd and others v Makki and others: ChD 3 May 2005

Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Part 32.14.’

David Richards J
[2005] EWHC 749 (Ch)
Bailii
Civil Procedure Rules 32.14
England and Wales
Citing:
CitedBird v Hadkinson ChD 4-Mar-1999
A party ordered to make disclosure in Mareva proceedings, could be found in contempt where the answers given were technically true, but misleading because of their incompleteness. The party has a clear duty to provide full and accurate disclosure. A . .
See AlsoDaltel Europe Ltd (In Liquidation) and Others v Hassan Ali Makki ChD 17-Jun-2004
. .

Cited by:
CitedKJM Superbikes Ltd v Hinton CA 20-Nov-2008
The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt . .
See AlsoDaltel Europe Ltd and others v Makki and others ChD 21-Oct-2005
. .
Appeal fromDaltel Europe Ltd and others v Makki and others CA 28-Feb-2006
The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Civil Procedure Rules

Updated: 11 November 2021; Ref: scu.224548

Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another: HL 23 May 2002

The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be granted, and also that her application for leave having been refused, there was no jurisdiction in the House to hear the appeal.
Held: The local authority wished to calculate time from the time when they resolved to refer the application to the secretary of state and to grant permission subject to conditions. The appellant had forewarned the authority of her intention to object. The effective decision was not made until the secretary of state himself made a decision. Public law should look to substance not form. Until the grant was actually made, changes might yet be made, and the appellant should not properly be challenging it. The applicant had not delayed unduly. A renewed application to the Court of Appeal under Order 59, rule 14(3) of the Rules of the Supreme Court was a true appeal with a procedure adapted to its ex parte nature. There was nothing in the rules to prevent the present application. There is some doubt that the requirement to challenge a decision by judicial review within three months meets with the requirements of the Convention or European law.

Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Millett and Lord Phillips of Worth Matravers
Times 24-May-2002, Gazette 04-Jul-2002, [2002] UKHL 23, [2002] 1 WLR 1593, [2002] 3 All ER 97
House of Lords, Bailii
Civil Procedure Rules 54.5(1), European Convention on Human Rights
England and Wales
Citing:
DoubtedIn re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
CitedLane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .

Cited by:
CitedGarden and Leisure Group Ltd, Regina (on the Application Of) v North Somerset Council and Another Admn 4-Jul-2003
The claimant garden centre sought to challenge a relaxation on planning restrictions over a competing centre.
Held: The section 106 agreemnent was to be looked at to see what purpose was served by the original conditions. Section 106A(6) does . .
CitedYounger Homes (Northern) Ltd v First Secretary of State and Another Admn 26-Nov-2003
The claimant sought to quash a planning decision on the basis that a screening decision had not been made.
Held: Though the procedures within the authority could have been bettered, there was no formal requirement for a screening option to . .
CitedRichardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
CitedDerbyshire Waste Ltd v Blewett and Another CA 11-Nov-2004
Glapswell Colliery had closed. The owners sought to use it for waste disposal by landfill. The objector had obtained judicial review of the permission granted.
Held: The intention of the Landfill Directive was to discourage its use other than . .
CitedThe British Beer and Pub Association and others v Canterbury City Council Admn 24-Jun-2005
The council had required of applicants for liquor licenses more detailed information than was required by the statute. The Association challenged their policy.
Held: One aim of the legislation is to allow licensing authorities to provide a . .
CitedFinn-Kelcey v Milton Keynes Council and MK Windfarm Ltd CA 10-Oct-2008
Judicial Review must be timely
The appellant challenged the grant of permission for a wind farm on neighbouring land. His application for judicial review had been rejected for delay and on the merits.
Held: The court repeated the requirement that an application must be both . .
CitedAlexander, Farrelly and Others, Re Judicial Review QBNI 5-Mar-2009
Each claimant said that they had been wrongfully arrested, the arresting police officers having either failed to ask whether the arrest was necessary (Farrelly), or mistakenly concluding so.
Held: The Order now contained in regulation . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedChampion, Regina (on The Application of) v North Norfolk District Council and Another SC 22-Jul-2015
‘The appeal concerns a proposed development by Crisp Maltings Group Ltd (‘CMGL’) at their Great Ryburgh plant in Norfolk, in the area of the North Norfolk District Council (‘the council’). It was opposed by the appellant, Mr Matthew Champion, a . .

Lists of cited by and citing cases may be incomplete.

Planning, Civil Procedure Rules, Judicial Review, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.171257

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 where he acted with knowledge of, or with reckless indifference to the illegality of the act, or with reckless indifference to the probability of causing harm. The directive placed general duties of supervision on the Bank of England, but imposed sufficiently detailed duties to give rise to private rights.
As to the Rules, the difference between the words of rule 24.2 and rule 3.4(2)(a) (between a test which asks the question ‘is the claim bound to fail?’ and one which asks ‘does the claim have a real prospect of success’) is elusive, but the practical effect of the two rules will often be the same and, in more complex cases, attention to the overriding objective of dealing with the case justly is likely to be more important than a search for their precise meaning: ‘For the reasons which I have just given, I think that the question is whether the [defence] has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is – what is to be the scope of that inquiry?’
‘The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. These must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.’
Lord Hope said: ‘Conversely, I consider that if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike out other parts of it. A great deal of time and money has now been expended in the examination of the preliminary issues, and I think that this exercise must now be brought to an end. I would reject the Bank’s application for summary judgment.’
Lord Hobhouse considered the need for a judge always to assess the claimant’s prospect of success: ‘The important words are ‘no real prospect of succeeding’. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a ‘discretionary’ power, i.e. one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is ‘no real prospect’, he may decide the case accordingly. . . Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.’

Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
Times 23-Mar-2001, [2001] 2 All ER 513, [2001] UKHL 16, [2000] 2 WLR 1220, [2003] 2 AC 1, [2001] Lloyds Rep Bank 125, (2001) 3 LGLR 36
House of Lords, Bailii, House of Lords
Civil Procedure Rules
England and Wales
Citing:
CitedAshby v White KBD 1703
Mr Ashby a burgess of the borough of Aylesbury was deprived of his right to vote by the misfeasance of a returning officer.
Held: The majority rejected the claim.
Lord Holt CJ (dissenting) An action would lie: ‘If the plaintiff has a . .
See AlsoThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .

Cited by:
CitedBrown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
CitedWWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc CA 27-Feb-2002
The claimant sought enforcement of a contract restricting the use by the appellant defendant of the initials ‘WWF’ in their trading. The agreement had been reached in settlement of an action for breach of the claimant’s trade mark rights. The . .
CitedCampbell v Frisbee ChD 14-Mar-2002
The defendant appealed a summary judgement on the claimant’s claim with respect to her alleged disclosure of details Miss Campbell’s private life. The claimant sought an action for account of profits for breach of the terms of a contract of service. . .
CitedCornelius v Hackney London Borough Council CA 25-Jul-2002
The applicant sought damages from the council for misfeasance in public office. Protracted litigation had followed his dismissal after he had attempted to bring allegations of misconduct within the authority to the attention of a council committee. . .
CitedLord Ashcroft v Attorney General and Department for International Development QBD 31-May-2002
The claimant was the subject of confidential reports prepared by the defendants which were leaked to newspapers causing him damage. He sought leave to amend his claim to add claims for breach of the Data Protection Act and for public misfeasance. . .
CitedAkenzua, Coy (Administrators of the Estate of Marcia Zena Laws (Deceased)) v Secretary of State for the Home Department, the Comissioner of Police for the Metropolis CA 23-Oct-2002
The claimant sought damages for misfeasance in public office. The defendant had been involved in the release of a person known to be violent from custody, and where he had subsequently killed a member of the claimant’s family. The family appealed a . .
CitedR Cruickshank Limited v The Chief Constable of Kent County Constabulary CA 13-Dec-2002
The claimant had sought damages from the defendant for unlawful interference with contractual relations, and for misfeasance in public office. It now appealed against an order striking out its claim. It claimed that the police had unlawfully abused . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedKeegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedEquitable Life Assurance Society v Bowley and others ComC 17-Oct-2003
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s . .
CitedCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
CitedQuark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
CitedChagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
CitedWatkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
CitedCelador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedIqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
CitedMarks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
CitedArmstrong v Times Newspapers Ltd and David Walsh, Alan English CA 29-Jul-2005
The claimant sought damages after publication by the first defendant of articles which it was claimed implied that he had taken drugs. The paper claimed qualified privilege, and claimed Reynolds immunity.
Held: The defence of qualified . .
CitedWeston v Gribben ChD 20-Dec-2005
. .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedHenderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
CitedVibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
CitedAdidas-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 . .
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
CitedAnsar v Lloyds TSB Bank Plc and others CA 9-Oct-2006
The claimant challenged a decision of the chairman of the Employment tribunal not to recuse himself on a later hearing after the claimant had previously made allegations of bias and improper conduct against him. . .
CitedHilda Amoo-Gottfried v Legal Aid Board (No 1 Regional Committee) CA 1-Dec-2000
The claimant appealed an order dismissing her claim for misfeasance in public office by the defendant, for the way in which they had mishandled her membership of duty solicitor rota schemes.
Held: The court discussed the requirements for . .
CitedWalsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
CitedBray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
CitedAlexander-David v London Borough of Hammersmith and Fulham CA 1-Apr-2009
The authority was required to provide housing to the minor applicant, but she was too young to hold a legal estate. An equitable lease had been created, and she now appealed against an order for possession having broken the terms of the agreement, . .
CitedImerman 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 . .
CitedMexfield Housing Co-Operative Ltd v Berrisford ChD 5-Oct-2009
The claimant appealed against refusal of a summary order for possession of the defendant tenant’s house for arrears of rent. The arrears arose through delay in payment of Housing Benefit, and all arrears had been cleared by the hearing of the . .
CitedL 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 . .
CitedLand 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 . .
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedJO1 v Garret and Another QBD 31-Mar-2010
The claimant sought damages against a social worker, alleging misfeasance in public office, and now appealed against a strike out of his claim.
Held: The elements necessary to succeed in such a claim were not made out in the pleadings, and . .
CitedKaschke v Gray and Another QBD 29-Mar-2010
kaschke_grayQBD10
The defendant appealed against the refusal of the Master to strike out the claim in defamation in respect of a post by a third party on his unmoderated blog. The claimant said that the article accused her of an historic association with a terrorist . .
CitedAbbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedSeray-Wurie v The Charity Commission of England and Wales CA 3-Feb-2009
The claimant appealed against the striking out of his claim for defamation in a reort prepared by the defendants criticising his actions as chairman of a CAB. The action had been struck out on the basis of qualified privilege, and the claimant’s . .
CitedCalland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
CitedDellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
CitedStocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
CitedAli v Associated Newspapers Ltd QBD 27-Jan-2010
The claimant sought damages in defamation, saying that a combination of publications identified him.
Held: Eady J briefly discussed the effect of hyperlinks in the context of a dispute about meaning or reference in a defamation case. . .
CitedGreen v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking, Civil Procedure Rules

Leading Case

Updated: 10 November 2021; Ref: scu.166154

KJM Superbikes Ltd v Hinton: CA 20 Nov 2008

The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt proceedings. The defendant argued that proceedings could only be brought with the consent of the Attorney General.
Held: The claimant’s appeal succeeded. When considering whether to give permission for contempt proceedings to be taken in any particular case the court must have regard to the public interest alone. The judge had not given the witness’s offence due seriousness. He was not in a position when considering leave to consider the potential penalty. ‘The immunity of a witness from proceedings in respect of things said in the course of giving evidence does not extend to immunity from punishment in respect of statements made under oath which are known to be false. A witness who knowingly makes a false statement in the course of giving evidence orally or in an affidavit does not expose himself to an action for damages at the suit of anyone injured as a result, but he does expose himself to the risk of prosecution for perjury and as such is publicly accountable for his attempt to interfere with the course of justice.’ It was incumbent on a party who became aware of an untrue statement to warn the contemnor as soon as possible, and a failure to do so may affect the readiness of the court to grant consent. Though the contemnor lived in Australia, it would be wrong for a witness living abroad to think that he was immune to such proceedings because of that.

Moore-Bick LJ
[2008] EWCA Civ 1280, [2009] 3 All ER 76, [2009] 1 WLR 2406, [2009] CILL 2645
Bailii
Civil Procedure Rules 32.14(2)
England and Wales
Citing:
CitedKabushiki Kaisha Sony Computer Entertainment Inc (t/a Sony Computer Entertainment Inc) v Ball and Others ChD 17-May-2004
The claimant sought an order for the defendant to be pursued for contempt of court having filed a statement of truth which was known to be false. . .
CitedMalgar Ltd v R E Leach Engineering Ltd ChD 1-Nov-1999
The Civil Procedure Rules could not change the substantive law. It therefore remained necessary for it to be shown that in addition to knowing that what was said was false, the party had to have known that what was being said was likely to interfere . .
CitedDaltel Europe Ltd and others v Makki and others ChD 3-May-2005
Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number . .
CitedDaltel Europe Ltd and others v Makki and others CA 28-Feb-2006
The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and . .
CitedKirk v Walton QBD 24-Jul-2008
kirk_waltonQBD2008
The defendant sought leave to bring proceedings for contempt of court against the claimant saying that she had had no honest belief in the matters deposed in her statement of truth, in that she had substantially exaggerated her injuries.
Held: . .

Cited by:
CitedSectorguard Plc v Dienne Plc ChD 3-Nov-2009
The claimant alleged misuse of confidential information in the form of its customer list, and its charges to them. The defendant company was run by former employees of the claimant. A later allegation was made of accessing the defendant’s private . .
CitedBarnes (T/A Pool Motors) v Seabrook and Others Admn 23-Jul-2010
In each of three cases, the former defendants sought leave to bring claims for contempt of court in respect of what it said were fraudulent claims by the respondents. The defendants argued that a party had first to go to the Attorney General.
CitedStobart Group Ltd and Others v Elliott QBD 11-Apr-2013
The defendant applied to the court for various officers of the cliamant companies to be subject to contempt proceedings. The claimants asked the court to strike of the defendant’s counterclaim and to make a civil restraint order against him. There . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.277918

Assicurazioni Generali Spa v Arab Insurance Group (BSC): CA 13 Nov 2002

Rehearing/Review – Little Difference on Appeal

The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. Tanfern was limited to appeals from interlocutory orders. The judge had seen the witnesses, and his assessment was to be interfered with only with great caution. It was not suggested here that the evidence should be reheard.
To prove inducement the insurer or reinsurer must show that the non-disclosure or misrepresentation was an effective cause of his entering into the contract on the terms on which he did. The judge was correct that ARIG had not shown that, if it had known the full facts, it would not have entered into the contracts or would have taken some other share. There was no basis for the court to interfere with that conclusion.
Ward LJ (dissenting) said: ‘I take the law to be this: if it be established that the representee did not allow the representation to affect his judgment in any way then he could not make it a ground for relief. If on the other hand the representee relied on the misrepresentation, then the representor cannot defeat his claim for relief by showing that there were other more weighty causes which contributed to his decision to enter into the contract. In this field the Court does not allow an examination of the relative importance of contributory causes. In other words, it is sufficient if the representation is a cause even if it is not the cause operating on the mind of the representee when he enters into the contract’.
Ward LJ discussed the difficulties of an appeal court reviewing a trial judges finding of fact, saying: ‘Bearing these matters in mind, the appeal court conducting a review of the trial judge’s decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established . . I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with the evaluation of those facts.’
Clarke LJ said: ‘The approach of the court to any particular case will depend upon the nature of the issues kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adams and Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyd’s Rep 293 and Bessant v South Cone Inc [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a ‘rehearing’ under the Rules of the Supreme Court and should be its approach on a ‘review’ under the Civil Procedure Rules 1998.
Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
In Todd’s case [2002] 2 Lloyd’s Rep 293, where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at p 319-320, para 129:
‘With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of ‘review’ may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment-such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was ‘wrong’ and to ‘draw any inference of fact which it considers justified on the evidence’ indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.’ . . Neuberger J stressed that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments.’

Ward, Clarke LJJ, Sir Christopher Staighton
Times 29-Nov-2002, Gazette 23-Jan-2003, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140
Bailii
Civil Procedure Rules 52.11
England and Wales
Citing:
ExplainedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
CitedIn re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
CitedSS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
CitedThe Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
CitedAkerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
CitedTodd and Others v Adams and Another CA 18-Apr-2002
The boat owners had failed to comply with the 1975 safety rules, and seamen died. The boat owners relied upon the restriction on damages in the 1995 Act, and the seamen’s families argued that the failure to apply the safety rules removed that . .
CitedBessant and others v South Cone Incorporated; in re REEF Trade Mark CA 28-May-2002
The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedSt Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
CitedJEB Fasteners Ltd v Marks, Bloom and Co CA 1981
Accountants prepared audited accounts knowing that the company was in financial difficulties, and the the accounts would be relied upon by the plaintiffs.
Held: The accountants owed a duty of care to the plaintiffs. They knew that they would . .
CitedSmith v Chadwick HL 1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .
CitedEdgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
CitedRedgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
CitedAbrahams v Mediterranean Insurance and Reinsurance Co Ltd 1991
. .
CitedJoyce v Yeomans CA 1981
The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an . .
CitedPan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
CitedThe Glannibanta CA 1876
‘Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a . .
CitedNocton v Lord Ashburton HL 1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
CitedBiogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .

Cited by:
CitedMerer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
CitedSinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages) CA 23-Oct-2003
The ‘Somatra’ was lost at sea. The insurance claim had been refused on the basis that the ship was unseaworthy. The owners came to instruct the appellant solicitors to represent them in the insurance claim. Having lost confidence in the solicitors, . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
CitedHarding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedBathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow CA 1-Apr-2004
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .
CitedA v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
CitedLondon Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
CitedAIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
CitedNorwich Union Insurance Ltd v Meisels and Another QBD 9-Nov-2006
The claimants sought payment for water damage under their policies. The insurer alleged non-disclosure. The judge had found the claimants to be honest, and criticised the defendants witnesses. The claimants had been involved in companies which had . .
ApprovedDatec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedHaw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedAli v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
CitedAlford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
CitedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
CitedGarratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
CitedHussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .
CitedDresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
CitedGladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
CitedWhitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
CitedHome Office v Lowles CA 29-Jul-2004
The defendant appealed against finding of liability. The claimant, an officer ar Armley Prison had been redirected to a side entrance. There was a ramp, but at the top was a two inch step. The parties had disputed the exact circumstances of the . .
CitedPlevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
CitedFortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
CitedShagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Professional Negligence, Insurance, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.178103

Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates: QBD 18 Nov 2008

Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order must be exceptional, and is not to be made simply because a party has funded the action. The proceedings were speculative and had been pursued unreasonably, and under the direction of the third party. However in the action he had not behaved improperly, and had fulfilled a role akin to that of a solicitor. The third party costs application was refused.

Tugendhat J
[2008] EWHC 2795 (QB)
Bailii
Supreme Court Act 1981 51, Civil Procedure Rules 48.2.(1)
England and Wales
Citing:
CitedPetromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
CitedSymphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
CitedMetalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd CA 7-Oct-1996
A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third . .
CitedDymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
CitedMurphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.278223

Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice): HL 21 Jan 2009

The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court.
Held: The appeal failed (Lord Rodger dissenting). Giving notice, for the purposes of the statutory appeals process under Part 2 of the 2003 Act, entails both filing and serving notice of appeal and that the fourteen day permitted period for giving notice cannot be extended by the Court invoking its powers under the Civil Procedure Rules. Being a statutory time limit, the court had no discretion to extend it. (Lord Rodger dissenting)
In interpreting a statute a court should ‘pay no attention whatever to the explanatory notes as an indication of their meaning. In this case the notes do not identify the mischief behind the enactments. Nobody outside government knows who drafted them, or revised them or on what basis. They cannot be regarded as any kind of authoritative guide to the meaning of the provisions. ‘
However where service had been made by fax shortly after 4:00pm, there was no need to apply the Civil Procedure Rules to deem this late service. The Rules had been disapplied by the statute.
Lord Rodger said the rule: ‘it imposes a substantial burden on a prospective appellant and his advisers. The question is whether Parliament considered that, exceptionally, the matter of service had to be taken out of the hands of the courts and subjected to the same immovable time-limit – with failure to meet the deadline resulting in the prisoner’s extradition, however meritorious the appeal that had been filed, however venial the slip that had resulted in service being late, and however little the prejudice that it had caused to the respondent. The potential for substantial injustice is striking.’

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 2, Times 27-Jan-2009, [2009] 1 WLR 276, [2009] WLR (D) 12
Bailii, HL
Extradition Act 2003 26 28 103 105, Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Civil Procedure Rules 3.1(2)(a) 3.10 6.9 52
England and Wales
Citing:
Appeal fromMucelli v Albania and Another Admn 15-Nov-2007
. .
CitedGercans v The Government of Latvia Admn 27-Feb-2008
The court was asked whether there was jurisdiction in High court to hear an appeal under section 26(4) against extradition order. . .
CitedSaber v Secretary of State for the Home Department HL 12-Dec-2007
The applicant sought asylum, saying that it would be unsafe to order his return. The issue before the House was as to when the need for protection should be assesed where, as here, there had been a series of appeals over time.
Held: The appeal . .
Appeal fromMoulai v Deputy Public Prosecutor In Creteil France Admn 9-May-2008
The court was asked ‘Whether it is a fatal bar to an appeal against an order extraditing (or not extraditing) a person, that a copy of the duly filed appeal notice was served on the respondent a few minutes late?’
Held: The failure to serve an . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
DistinguishedAnderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
CitedPritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
See AlsoMucelli v Secretary of State for The Home Department Admn 18-Jan-2008
. .
See AlsoMucelli v Albania and Another Admn 15-Nov-2007
. .

Cited by:
CitedMann, Regina (on The Application of) v The City of Westminster Magistrates’ Court and Others Admn 19-Jan-2010
The defendant had been convicted of an offence in Portugal and sentenced to imprisonment. He was given an order for voluntary departure, but his lawyers did not file an appeal. When a European Arrest Warrant was issued, he now sought an order for . .
CitedHalligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
At HLMucelli, Regina (on The Application of) v The Government of Albania Admn 27-Jan-2012
Cranston J said that in his view the law and practice in Albania was such that there was no real risk that the applicant would suffer a flagrant denial of justice on his return to Albania, as he was entitled to a retrial on the merits of the case . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
CitedModaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
CitedBPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .

Lists of cited by and citing cases may be incomplete.

Extradition, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.280076

Wragg and Another v Partco Group Ltd UGC Ltd: CA 1 May 2002

A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made specific reference to cases in areas of law involving developing jurisprudence. This was one such, and the case should go ahead. The personal liability of directors on takeovers is evolving. The trial might well establish facts which would assist the claimants make out their case.
A court should consider carefully before dealing summarily with single issues if the claim will in any event, go to trial.
Potter LJ summarised the principles to be applied on an application for a summary disposal of a case: ‘It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Part 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent – v- Griffiths [2001] QB 36. This is particularly so where a decision will put an end to an action.
In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective.
The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action.
The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)-(4) is to be found in: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Hope, considering Swain v Hillman [2001] 1 All ER 91; Green v Hancocks [2001] Lloyds Rep. PN212, per Chadwick LJ; and Killick v Price Waterhouse Coopers [2001] Lloyds Rep. PN17 per Neuberger J. . .
Summary disposal will frequently be inappropriate in complex cases. If an application involves prolonged serious argument, the court should, as a rule, decline to proceed to the argument unless it harbours doubt about the soundness of the statement of case and is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of the trial itself: see the Three Rivers case per Lord Hope . . considering the Williams and Humbert case. (6) It is inappropriate to deal with cases at an interim stage where there are issues of fact involved, unless the court is satisfied that all the relevant facts can be identified and clearly established: see Killick v Price Waterhouse . .
It is inappropriate to strike-out a claim in an area of developing jurisprudence. In such areas, decisions should be based upon actual findings of fact: see Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf MR and per Chadwick LJ, applying Barratt v London Borough of Islington [1999] 3 WLR 83 and X (Minors) v Bedfordshire CC [1995] 2 AC 633.’

Potter LJ
Times 10-May-2002, Gazette 07-Jun-2002, [2002] EWCA Civ 594, [2002] 2 BCLC 323, [2002] 2 LLR 343
Bailii
Civil Procedure Rules 3.4(2)(a)
England and Wales
Cited by:
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedBristol Alliance Ltd v Williams and Another QBD 1-Jul-2011
bristol_williamsQBD11
The driver had crashed into the insured’s building causing substantial damage. The court was asked which of the driver’s and building’s insurers should bear the costs. The driver’s insurers said that he had acted deliberately and therefore they were . .
CitedPickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice, Company

Leading Case

Updated: 10 November 2021; Ref: scu.171237

Shah v Ul-Haq and Others: CA 9 Jun 2009

The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a basis. The dishonest assertion of a claim by a co-claimant did not prevent recovery of the sums properly due to a claimant. This applied even if the court had found that the claimant had dishonestly supported the fraudulent claim. The only exception lay in insurance claims. Where necessary, a court could show its disapproval of a party’s behaviour by awards of costs. It could not do so by preventing a proper claim.

Smith, Moses Touson LJJ
[2009] RTR 27, [2010] WLR 616, [2009] CP Rep 39, [2010] 1 All ER 73, [2010] 1 WLR 616, [2009] EWCA Civ 542
Bailii, Times
Civil Procedure Rules 3.492)
England and Wales
Citing:
CitedArrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
Appeal fromUl-Haq and others v Shah QBD 31-Jul-2008
After a car crash claims were settled for some claims but the defendant said that one claimant had not been in the car at the time. . .

Cited by:
CitedWidlake v BAA Ltd CA 23-Nov-2009
The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to . .
BindingSummers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
CitedFairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 10 November 2021; Ref: scu.346803

Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Limited, Hola SA, Junco, The Marquesa De Varela, Neneta Overseas Limited, Ramey: CA 12 Feb 2003

The claimants claimed infringement of the privacy of their wedding celebrations. They requested permission for service out of the jurisdiction to join Mr Ramey as defendant, saying he had been the one who had taken some of the photographs in New York at issue. Mr Ramey resisted saying that, being resident in California, there was no good cause for the court to assume jurisdiction over him. It was accepted that in the imminent full trial, no issue could be taken against him.
Held: If there was a serious issue to be tried against him, England was the appropriate place to hear it. His alleged involvement was as a participator, and not just as an assistant. Appeal allowed.

Scott Baker, Rix Master Of The Rolls (Lord Phillips)
[2003] EWCA Civ 139, [2003] EMLR 585
Bailii
Civil Procedure Rules 6.20
England and Wales
Citing:
CitedBerezovsky and Glouchkov v Forbes Inc and Michaels CA 31-Jul-2001
The claimant sought damages from the defendant for a magazine article claiming that he was involved in organised crime in Russia. The defendants appealed against the striking out of elements of the defence suggesting lesser meanings. Was meaning a . .
Appeal fromDouglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .

Cited by:
See AlsoDouglas etc v Hello! Ltd etc ChD 11-Apr-2003
The claimants were to be married. They sold the rights to publish photographs of their wedding, but various of the defendants took and published unauthorised pictures.
Held: The claimants had gone to lengths to ensure the commercial value of . .
CitedAshton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
CitedHRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.179038

Easyair Ltd (T/A Openair) v Opal Telecom Ltd: ChD 2 Mar 2009

Principles Applicable on Summary Judgment Request

The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91 ;
ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED and F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED and F Man Liquid Products v Patel at [10]
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals and Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.’

Lewison J
[2009] EWHC 339 (Ch)
Bailii
Civil Procedure Rules 24.2
England and Wales
Citing:
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedThe Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedDoncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
CitedICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .

Cited by:
ApprovedQuirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
CitedSeven Arts Entertainment Ltd v Content Media Corporation Plc and Others ChD 18-Mar-2013
The claimant sought summary judgment on its claim for copyright infringement based upon judgements on the same materials in Canada. . .
ApprovedAC Ward and Son v Catlin (Five) Ltd and Others CA 10-Sep-2009
The defendant insurers appealed against refusal of summary judgment in its favour in defending a claim under a policy. The claimants premises had been burgled. The insurer said that the claimant had failed to respect warranties given by it as to . .
CitedDellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
CitedGuthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
ApprovedBhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
CitedScott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
CitedGlobal Asset Capital, Inc and Another v Aabar Block Sarl and Others CA 1-Feb-2017
Appeal against refusal of summary judgment. The court set out the applicable principles concerning strike out and summary judgment: ‘(1) The court must consider whether the case of the respondent to the application has a realistic as opposed to . .
See AlsoEasyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 8-Apr-2009
. .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
CitedGerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
CitedHRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
CitedGreen v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Contract, Civil Procedure Rules, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.316598

United Film Distribution Limited; United Pictures (India) Exports Private Limited v Chhabria; Chhabria; Spark Entertainments Limited; Spark Media Limited; Fairdeal Exports Private Limited and Mathilda International SA: CA 28 Mar 2001

The court rules, which dealt with the grant of permission to serve documents out of the jurisdiction under rule 6.20(2), were no less wide than the power in the court with regard to the substitution, or addition, of parties under Rule 19.1(2). The change from the old court rules had not either narrowed the power.

Times 05-Apr-2001, [2001] EWCA Civ 416
Bailii
Civil Procedure Rules
England and Wales
Cited by:
Cited889457 Alberta Inc v Katanga Mining Ltd and others ComC 5-Nov-2008
The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Jurisdiction

Updated: 09 November 2021; Ref: scu.135524

Venulum Property Investments Ltd v Space Architecture Ltd and Others: TCC 22 May 2013

The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially changed, and the court is now to consider: ‘all the circumstances of the case, so as to enable it to deal justly with the application, including the need- (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.’ and ‘when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The Claimant has taken quite long enough to bring these proceedings and enough is now enough. I therefore refuse this application. ‘

Edwards-Stuart J
[2013] EWHC 1242 (TCC)
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
CitedPrice v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
See AlsoStolzenberg and others v CIBC Mellon Trust Co Ltd and others CA 30-Jun-2004
The court considered the issue of the use of a strike out as a sanction for non-compliance with a court order.
Held: The approach of the court in a case considering relief for sanctions – exemplified by RC Residuals v Linton Fuel was bound to . .
CitedCIBC Mellon Trust Company and Others v Stolzenberg and Others ChD 3-Feb-2003
Application to set aside judgments entered on failure to comply with ‘unless’ orders.
Held: Etherton J said: ‘The Court of Appeal has laid down guidance as to the approach of the Court when considering an application for relief from sanctions . .
CitedHashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
CitedFred Perry (Holdings) Ltd v Brands Plaza Trading Ltd and Another CA 1-Feb-2012
Lewison LJ cited with approval paragraph 6.5 of the Jackson report, which said: ‘courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and . .
CitedTotty v Snowden; Hewitt v Wirral and West Cheshire Community NHS Trust CA 31-Jul-2001
Where a party had served a claim form, but then failed to serve the particulars of claim within the appropriate time limit, the court had full discretion to allow an extension of time for service. It had been argued that the same rules applied both . .
CitedCollier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
CitedHoddinott and others v Persimmon Homes (Wessex) Ltd CA 21-Nov-2007
The claimant had issued proceedings and the defendant filed an acknowledgement, and then argued that the court had no jurisdiction. The claimant appealed against an order declining jurisdiction.
Held: Where a party filed an acknowledgement, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 09 November 2021; Ref: scu.510044

White v Southampton University Hospitals NHS Trust and Another: QBD 1 Apr 2011

The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through disclosure in other proceedings and also that material was privileged.
Held: The defendant was entitled to summary judgment as regards the letter to the BMA initiating the complaint. There was no way that that claim could succeed. ‘The public policy objective is to enable people to speak freely, without inhibition and without fear of being sued, whether making a complaint of criminal conduct to the police or drawing material to the attention of a professional body such as the GMC or the Law Society for the purpose of investigation. It is important that the person in question must be able to know at the time he makes the relevant communication whether or not the immunity will attach; that is to say, the policy would be undermined if, in order to obtain the benefit of the immunity, he was obliged to undergo the stress and expense of resisting a plea of malice.’
As to the letter disclosed in other proceedings, that could not be used for any other purpose without consent. That consent had been refused under the discretion of the judge, and that discretion should not be disturbed without good reason. In fact it had been exercised correctly: ‘it is necessary always to bear in mind that the ultimate purpose of any libel litigation is for the claimant to achieve vindication in respect of his or her character. Since she is not complaining of any of the other passages in the reference, it is not easy to see how a libel action in respect of this letter could ever achieve anything by way of vindication. Accordingly, it seems to me, as in effect it also did to the Master, that any rights on the part of Dr White under Article 6 or Article 8 of the Convention are outweighed by the rights of the Defendants under Article 10 and, specifically, their right not to be vexed with unmeritorious and futile litigation over a confidential document disclosed under compulsion of law.’

Eady J
[2011] EWHC 825 (QB)
Bailii
Civil Procedure Rules 31.22
England and Wales
Citing:
CitedLincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
CitedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
CitedLilley v Roney 1892
A complaint to the Law Society or its equivalent had been held to be made on occasion of absolute privilege. . .
CitedHung v Gardiner 6-May-2003
Canlii (Court of Appeal for British Columbia) The court was asked whether a person who provides information to a professional disciplinary body about the conduct of one of its members is liable in an action . .
CitedVaidya v General Medical Council QBD 16-Nov-2010
Adjourned application to set aside a general civil restraint order. One issue was as to a claim brought upon a letter to the GMC. The judge said: ‘It appears to me to be clear beyond argument that this letter is protected by absolute privilege since . .
CitedVaidya v General Medical Council QBD 2010
Sir Charles Gray said: ‘It appears to me to be clear beyond argument that this letter is protected by absolute privilege since it was written to an official of an investigatory body (the GMC) in order to complain about the conduct of Dr Vaidya.’ . .
CitedWestcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
CitedAhari v Birmingham Heartlands and Solihull NHS Trust EAT 1-Apr-2008
EAT Practice and Procedure: Strikingout/dismissal
Jurisdictional Points: Claim in time and effective date of termination
Race discrimination: Direct
Absolute witness immunity – quasi-judicial . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedTrapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
CitedDawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedRoyal Aquarium and Summer and Winter Garden Society Ltd v Parkinson CA 1892
The court described the characteristics of a tribunal to which absolute privilege attaches. Having spoken of ‘an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes’ and similar . .
CitedG 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 . .

Lists of cited by and citing cases may be incomplete.

Defamation, Civil Procedure Rules

Updated: 09 November 2021; Ref: scu.431659

E D and F Man Liquid Products Ltd v Patel and Another: CA 4 Apr 2003

The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, under the latter, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside. In this case the facts would satisfy either test whatever the difference. The evidence did not establish that anyone had ever used the search term ‘Mr Spicy’ but rather the defendants had been found by using the term ‘spicy’. The court must disregard prospects of success which are false, fanciful or imaginary. Inclusion of the word ‘real’ means that the claimant must have a case which is better than merely arguable.
Potter LJ said that in evaluating the prospects of success of a claim or defence the judge is not required to abandon her critical faculties: ‘It is certainly the case that under both rules, where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable . .’

Lord Justice Potter Lord Justice Peter Gibson
[2003] EWCA Civ 472, Times 18-Apr-2003, Gazette 19-Jun-2003, [2003] CP Rep 51, [2003] CPLR 384, [2003] CPLR 349, [2003] QB 1556, [2003] 3 WLR 667
Bailii
Civil Procedure Rules 13.3(1)(a) 24.2(a)(ii)
England and Wales
Citing:
CitedAlpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
CitedInternational Finance Corporation v Utexafrica SPRL ComC 9-May-2001
The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation . .
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedThree 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 . .
Application for leaveED and F Man Liquid Products Ltd v Patel and Another CA 16-Oct-2002
Application for leave to appeal . .

Cited by:
CitedCelador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
CitedNelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
CitedNigeria v Santolina Investment Corp and others ChD 7-Mar-2007
The federal government sought to recover properties from the defendants which it said were the proceeds of corrupt behaviour by the principal defendant who had been State Governor of a province. The claimant sought summary judgment.
Held: . .
CitedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
CitedWilson v Yahoo! UK Ltd and Another ChD 20-Feb-2008
The claimant had carried on business as ‘Mr Spicy’ selling snacks, and had obtained community trade marks for the name. He said that the defendant had allowed the infringement of his rights by allowing sainsbury’s to use the terms in their keywords . .
CitedPegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
CitedNolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
CitedDowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
CitedWebb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedParties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
CitedMeakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .
CitedLockey v East North East Homes Leeds EAT 14-Jun-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out – unfair dismissal and wrongful dismissal.
As to unfair dismissal, since (as the Employment Judge recognised) it was arguable that an . .
CitedCalland v Financial Conduct Authority CA 13-Mar-2015
The claimant appealed against the striking out of his claim of harassment against the Authority who had contacted him in an intended review of pensions mis-selling. They had contacted him once by letter, once by telephone and once by e-mail.
CitedEasyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
CitedGuthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
CitedSiddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
CitedBhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
CitedTayside Public Transportcompany Ltd (T/A Travel Dundee) v Reilly SCS 30-May-2012
The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the . .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.180586

Reid Minty (a firm) v Taylor: CA 2002

New CPR govern Indemnity Costs awards

The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of moral condemnation was required. The defendant had made an offer to settle which was only later accepted. The defendant sought costs on an indemnity basis.
Held: A civil court may make an order for the assessment of costs on an indemnity basis to mark the court’s disapproval of a party’s unreasonable conduct. The Civil Procedure Rules contain a new procedural code, intended to enable the court to deal with cases justly. It is no longer necessary to show that there has to be some sort of moral lack of probity or conduct deserving moral condemnation on the part of the paying party before ordering indemnity costs. If one party has made a real effort to find a reasonable solution to the proceedings and the other party has resisted that sensible approach, then the latter puts himself at risk that the order for costs may be on an indemnity basis. In this case the judge had applied the incorrect test. His decision was set aside, and the case remitted to him for further determination.
May LJ said: ‘As the very word ‘standard’ implies, this will be the normal basis of assessment where the circumstances do not justify an award on an indemnity basis. If costs are awarded on an indemnity basis, in many cases there will be some implicit expression of disapproval of the way in which the litigation has been conducted, but I do not think this will necessarily be so in every case. What is, however, relevant to the present appeal is that litigation can readily be conducted in a way which is unreasonable and which justifies an award of costs on an indemnity basis, where the conduct could not properly be regarded as lacking moral probity or deserving moral condemnation.’ . . And ‘If costs are awarded on an indemnity basis in many cases there will be some implicit expression of disapproval of the way in which the litigation has been conducted, but I do not think that this will necessarily be so in every case. What is, however, relevant, at the present appeal, is that litigation can readily be conducted in a way which is unreasonable and which justifies an award of costs on an indemnity basis, where the conduct could not properly be regarded as lacking moral probity, or deserving moral condemnation . . There will be many cases in which, although the defendant asserts a strong case throughout and eventually wins, the Court will not regard the claimant’s conduct of the litigation as unreasonable and will not be persuaded to award the defendant indemnity costs. There may be others where the conduct of a losing claimant will be regarded, in all the circumstances, as meriting an order in favour of the defendant of indemnity costs. Offers to settle and their terms will be relevant, and if they come within Part 36 may, subject to the Court’s discretion, be determinative.’

May LJ, Kay LJ, Ward LJ
[2002] 1 WLR 2800, [2001] EWCA Civ 1723, [2002] EMLR 19, [2002] 1 Costs LR 180, [2002] 2 All ER 150, [2002] CP Rep 12, [2002] CPLR 1
Bailii
Civil Procedure Rules 36.21 44.3 44.4
England and Wales
Citing:
CitedPetrograde Inc v Texaco Ltd CA 23-May-2000
The award of costs under Rule 36.21 on an indemnity basis is not intended to be penal, and the court must look at what was fair and reasonable in the circumstances. Lord Woolf said: ‘However, it would be wrong to regard the rule [36.21] as producing . .
CitedDavid John Baron v Brian Lovell CA 27-Jul-1999
A party to litigation must ensure that an agent attending had sufficient knowledge and authority to deal with issues raised at a pre-trial review, and where he failed in this he could be penalised in indemnity costs or interest at higher rates than . .
CitedMcPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
CitedRaja v Rubin and Another CA 19-Mar-1999
Having waived his right to a dividend under a voluntary arrangement, a creditor could not object to its later variation to include other creditors, despite an absence of explicit power in the deed for this purpose. Waiver should have been made . .

Cited by:
CitedKiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .
CitedBrawley v Marczynski and Another CA 21-Oct-2002
The defendants appealed an award of costs on an indemnity basis against them in the favour of a legally aided claimant.
Held: Indemnity costs were often intended to indicate disapproval of a party’s behaviour in an action, and were awarded in . .
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
CitedCarvill v HM Inspector of Taxes SCIT 23-Mar-2005
SCIT COSTS – Basis for award – Indemnity costs – Whether Special Commissioners have power to award costs on the indemnity basis – Yes – Whether costs should be awarded on the indemnity basis – Yes – Special . .
CitedFosberry and Another v Revenue and Customs VDT 28-Jul-2005
COSTS – Indemnity basis – Commissioners accepted that taxpayers’ appeal succeeded – Commissioners offered to pay taxpayers’ costs – Taxpayers applied for indemnity costs on grounds that Commissioners had changed their reasons for original decision . .
CitedVaidyanathan v Milton Keynes Council EAT 25-Nov-2003
EAT Practice and Procedure – Appearance . .
CitedHarrods (UK) Ltd v Revenue and Customs VDT 1-Nov-2005
VDT VALUE ADDED TAX – Direction to pay costs to the successful party (the Appellant) – rule 29(1) of the VAT Tribunals Rules 1986 – whether costs should be awarded on the standard basis or alternatively on the . .
CitedThe Funding Corporation Ltd v Revenue Customs VDT 4-Apr-2006
VDT VALUE ADDED TAX – Direction to pay costs to the successful party (the Appellant) – rule 29(1) of the VAT Tribunals Rules 1986 – whether costs should be awarded on the standard basis or alternatively on the . .
CitedVauxhall Motors Ltd and Another v Revenue and Customs VDT 14-Mar-2007
VDT Value Added Tax – Direction to pay costs to the successful party (the Appellant) – Rule 29(1) of the VAT Tribunals Rules 1986 – Whether costs should be awarded on the standard basis or alternatively on the . .
CitedLandlord Protect Ltd v St Anselm Development Company Ltd ChD 8-Jul-2008
. .
CitedExcelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
CitedWates Construction Ltd v HGP Greentree Allchurch Evans Ltd TCC 10-Oct-2005
A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now . .
CitedEvans and Others v The Serious Fraud Office QBD 12-Feb-2015
evans_sfoQBD201502
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.182851

Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4): CA 7 Aug 2002

The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon the Bingham report, and they sought disclosure of documents provided to the Enquiry. They appealed findings that the actual respondents to the application did not have possession of the documents sought. The Treasury cross-appealed an order not requiring the claimant to specify the documents sought, saying that the threshold condition under the rules had not been met.
Held: It was not necessary to show that it was more likely than not that the documents would be of assistance. The tests were to be applied to the class of documents, and not each document in turn. Appeals dismissed. ”likely’ [within the rules] does not carry any necessary connotation of ‘more probable than not’. It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature – or the rule-making body, as the case may be – intended a modest threshold of probability.’

The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene
Times 04-Oct-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1182, [2003] 1 WLR 210, [2002] 4 All ER 881, [2003] CP Rep 9, [2003] CPLR 181
Bailii
Civil Procedure Rules 31.17(3)(a)
England and Wales
Citing:
CitedAmerican Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited, Novartis Pharma AG CA 27-Jul-2000
The invention was a second medical use for a known drug rapamycin, which was found to have an immuno-suppressive effect. The court asked whether a claim to rapamycin should be construed to include derivatives.
Held: A person skilled in the art . .

Cited by:
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedFlood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
CitedClifford v NGN Ltd and Mulcaire ChD 3-Feb-2010
There are three steps in every case where a party seeks disclosure from a third party: ‘(1) First it has to be shown that the documentation is likely to support the case of the applicant or adversely affect the case of the respondent. The word . .
CitedAndrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.174769

WXY v Gewanter and Another: QBD 30 May 2012

The claimant had obtained an injunction to restrain publication of what was private information. The third defendant now applied to set aside the judgment, saying that their application for an adjournment had been wrongly refused. He said that he had been intimidated into not attending.
Held: The defendant’s evidence was inconclusive and, though his delay in applying for leave, at three weeks, was excusable in such a non-straightforward case, the defendant had not established that an adjournment should have been granted, and the judge had acted correctly.

Slade J
[2012] EWHC 1490 (QB)
Bailii
Civil Procedure Rules 39.3(3) 32.7
England and Wales
Citing:
CitedRegency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .
CitedBrazil v Brazil CA 31-Jul-2002
The defendant appealed against an order for rectification of the registered title to land he occupied, and for which he had had a possessory title. The order had been made in his absence.
Held: A ‘good reason’ for non attendance at a hearing . .
CitedWatson v Bluemoor Properties Ltd CA 10-Dec-2002
Application for leave to appeal.
Held: An application to set aside made within six weeks of judgment was sufficiently prompt in a case which was ‘by no means straightforward’. . .
CitedBank of Scotland v Pereira and Others CA 9-Mar-2011
The mortgagor sought to appeal against a mortgagee’s possession order. The Court of Appeal considered the interaction between an application under CPR rule 39.3 to set aside a default judgment and an application for permission to appeal under CPR Pt . .

Cited by:
See AlsoWXY v Gewanter and Another QBD 30-May-2012
Leave to appeal refused (brief judgment) . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 02 November 2021; Ref: scu.459808

Swain v Hillman: CA 21 Oct 1999

Strike out – Realistic Not Fanciful Chance Needed

The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear words. The judge need not and should not examine carefully at this stage issues which should properly be investigated only at trial. He should not conduct a ‘mini-trial’.
If a claimant has a case which is bound to fail, then it is in his interest to know that that is the position as soon as possible but Lord Woolf also stressed that the case had to be a plain case.
CS Lord Woolf discussed the power to dismiss a claim summarily: ‘It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success . . they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.’ and
‘It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Useful though the power is under Pt 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial . . The proper disposal of an issue under Pt 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.’

Lord Woolf MR
Times 04-Nov-1999, [2001] 1 All ER 91, [2001] CP Rep 16, [2000] PIQR 51, [1999] CPLR 779, [1999] EWCA Civ 3053
Bailii
Civil Procedure Rules 24.2
England and Wales
Citing:
CitedTaylor and others v Midland Bank Trust Company Limited CA 21-Jul-1999
Stuart-Smith LJ rationalised the possible conflict between Part 24 and the practice direction to Part 24 in its original form by saying that the correct view of the effect of the practice direction is to be gleaned from the heading to the paragraph . .

Cited by:
CitedParsons Plastics (Research and Development) Ltd v Purac Ltd CA 12-Apr-2002
The claimants were main contractors on a construction project. The respondents were sub-contractors. After difficulties, the sub-contractor was ejected from the site. The issue was as to the jurisdiction of the adjudicator. Was the project, to . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedWilliam Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedDowntex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .
CitedHerbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
CitedParks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
CitedCelador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
CitedKane v New Forest District Council CA 13-Jun-2001
A pedestrian walked from a footpath into the road and was hit by a car. She sought damages from the highway authority, saying that they had allowed vegetation to grow to an extent to make it impossible to be seen. As a second tier appeal, the . .
CitedRachmaninoff and Others v Sotheby’s and Another QBD 1-Mar-2005
The defendant had offered for sale by auction recently discovered works of Rachmaninoff. The claimants, descendants of the composer asserted ownership through his estate. The defendants refused to identify the seller.
Held: The claim should . .
CitedCarillion 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 . .
CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
CitedSutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
CitedNigeria v Santolina Investment Corp and others ChD 7-Mar-2007
The federal government sought to recover properties from the defendants which it said were the proceeds of corrupt behaviour by the principal defendant who had been State Governor of a province. The claimant sought summary judgment.
Held: . .
CitedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
CitedPegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
CitedParker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
CitedShah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
CitedNolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
CitedShah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
CitedBrown ( A Minor) v Emery QBD 4-Mar-2010
brown_emeryQBD2010
The court considered an application for an interim payment to fund the purchase of suitable accommodation in which the child claimant might spend periods of time with her parents and sibling and ultimately reside on discharge, at a cost of . .
CitedParties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
CitedKaschke v Gray and Another QBD 29-Mar-2010
kaschke_grayQBD10
The defendant appealed against the refusal of the Master to strike out the claim in defamation in respect of a post by a third party on his unmoderated blog. The claimant said that the article accused her of an historic association with a terrorist . .
CitedMeakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedWyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
CitedDellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
CitedEasyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
CitedGuthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
CitedAli v Associated Newspapers Ltd QBD 27-Jan-2010
The claimant sought damages in defamation, saying that a combination of publications identified him.
Held: Eady J briefly discussed the effect of hyperlinks in the context of a dispute about meaning or reference in a defamation case. . .
CitedBhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.89645

Roult v North West Strategic Health Authority: CA 20 May 2009

The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to request that the order be amended. He now appealed refusal of an order.
Held: The court did not have jurisdiction to vary a settlement later undermined by an unexpected event. The order had been a final disposal of the action, and it was not in the interests of vulnerable parties generally to allow the variation of such orders. Rule 3.1(7) could not be used for this purpose.
Hughes LJ concluded: ‘I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case [2003] EWHC 140 I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR r 3.1(7) cannot bear the weight which Mr Grime’s argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue-an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Lord Justice Carnwath, Lady Justice Smith and Lord Justice Hughes
[2009] EWCA Civ 444, [2010] 1 WLR 487, [2009] LS Law Medical 383, [2009] PIQR P18
Bailii, Times
Civil Procedure Rules 3.1
England and Wales
Citing:
CitedPearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
Citedde Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
CitedBarder v Caluori HL 2-Jan-1987
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully . .
ApprovedLloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
Cited by:
CitedKojima v HSBC Bank Plc ChD 22-Mar-2011
The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Civil Procedure Rules

Updated: 02 November 2021; Ref: scu.346218

Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan: CA 4 Dec 1992

No Judicial Review of Decisions of Private Body

Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: ‘No serious racecourse management, owner, trainer or jockey can survive without the recognition or licence of the Jockey Club. There is in effect no alternative market in which those not accepted by the Jockey Club can find a place or to which racegoers may resort. Thus by means of the rules and its market domination the Jockey Club can effectively control not only those who agree to abide by its rules but also those — such as disqualified or excluded persons seeking to participate in racing activities in any capacity — who do not. For practical purposes the Jockey Club’s writ runs in the British racing world, to the acknowledged benefit of British racing.’ As to the rules of racing: ‘The Rules of Racing are a skilfully drafted, comprehensive and far-reaching code of rules through which the Jockey Club exercises its control over racing in this country.’
Farquharson LJ: ‘ . . there has never been any doubt that public law remedies do not lie against domestic bodies, as they derive solely from the consent of the parties. . . The question remains whether the Jockey Club, or this particular decision of it, can properly be described as a domestic body acting by consent.
…. The courts have always been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club were dissolved, any governmental body would assume control of racing. Neither in its framework nor its rules nor its function does the Jockey Club fulfil a governmental role.
I understand the criticism made by Mr. Kentridge of the reality of the consent to the authority of the Jockey Club. The invitation to consent is very much on a take it or leave it basis. But I do not consider that this undermines the reality of the consent. Nearly all sports are subject to a body of rules to which an entrant must subscribe. These are necessary, as already observed, for the control and integrity of the sport concerned. In such a large industry as racing has become, I would suspect that all those actively and honestly engaged in it welcome the control of licensing and discipline exerted by the Jockey Club.
For these reasons I would hold that the decision of the Disciplinary Committee of the Jockey Club to disqualify Aliysa from the 1989 Oaks is not susceptible to judicial review.
As to Mr. Milmo’s assertion that the question of the Jockey Club’s susceptibility to judicial review must be answered on an all or nothing basis, I can only say as at present advised that I do not agree. . . While I do not say that particular circumstances would give a right to judicial review I do not discount the possibility that in some special circumstances the remedy might lie. If for example the Jockey Club failed to fulfil its obligations under the charter by making discriminatory rules, it may be that those affected would have a remedy in public law.
In the present appeal there is no hardship to the applicant in his being denied judicial review. If his complaint that the disciplinary committee acted unfairly is well-founded there is no reason why he should not proceed by writ seeking a declaration and an injunction. Having regard to the issues involved it may be a more convenient process. I would dismiss the appeal.’
Hoffmann LJ: ‘It is true that in some countries there are statutory bodies which exercise at least some control over racing. It appears from Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 that this is the position in Tasmania and we were told that it was also true of certain of the United States. But different countries draw the line between public and private regulation in different places. The fact that certain functions of the Jockey Club could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England. The attitude of the English legislator to racing is much more akin to his attitude to religion (see Reg. v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 W.L.R. 1036): It is something to be encouraged but not the business of government.
All this leaves is the fact that the Jockey Club has power. But the mere fact of power, even over a substantial area of economic activity, is not enough. In a mixed economy, power may be private as well as public. Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be found in the law of contract, the doctrine of restraint of trade, the Restrictive Trade Practices Act 1976, articles 85 and 86 of the E.E.C. Treaty and all the other instruments available in law for curbing the excesses of private power.
It may be that in some cases the remedies available in private law are inadequate. For example, in cases in which power is exercised unfairly against persons who have no contractual relationship with the private decision-making body, the court may not find it easy to fashion a cause of action to provide a remedy. In Nagle v. Feilden [1966] 2 Q.B. 633, for example, this court had to consider the Jockey Club’s refusal on grounds of sex to grant a trainer’s licence to a woman. She had no contract with the Jockey Club or (at that time) any other recognised cause of action, but this court said that it was arguable that she could still obtain a declaration and injunction. There is an improvisatory air about this solution and the possibility of obtaining an injunction has probably not survived Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A [1979] A.C. 210.
It was recognition that there might be gaps in the private law that led Simon Brown J. in Reg. v. Jockey Club, Ex parte R.A.M. Racecourses Ltd. [1993] 2 A11 E.R. 225 to suggest that case like Nagle v Feilden [1966] 2 Q.B. 633, as well as certain others involving domestic bodies like the Football Association in Eastham v Newcastle United Football Club Ltd. [1964] Ch. 413 and a trade union in Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175, ‘had they arisen today and not some years ago, would have found a natural home in judicial review proceedings.’ For my part, I must respectfully doubt whether this would be true. Trade unions have now had obligations of fairness imposed upon them by legislation, but I doubt whether, if this had not happened, the courts would have tried to fill the gap by subjecting them to public law. The decision of Rose J. in Reg. v. Football Association Ltd., Ex parte Football League Ltd., The Times, 22 August 1991, which I found highly persuasive, shows that the same is probably true of the Football Association. I do not think that one should try to patch up the remedies available against domestic bodies by pretending that they are organs of government.
In the present case, however, the remedies in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the Jockey Club, both as a registered owner and by virtue of having entered his horse in the Oaks. The club has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I avoid the slippery word void) and, if necessary, an injunction to restrain the club from doing anything to implement it. No injustice is therefore likely to be caused in the present case by the denial of a public law remedy.’
Sir Thomas Bingham MR said that the test was whether the powers exercised were governmental: ‘I have little hesitation in accepting the applicant’s contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so.
But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a Royal Charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horserace Betting Levy Board, no doubt as a body with an obvious interest in racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horseracing, perhaps because it has itself controlled horseracing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental. The discretion conferred by section 31(6) of the Supreme Court Act 1981 to refuse the grant of leave or relief where the applicant has been guilty of delay which would be prejudicial to good administration can scarcely have been envisaged as applicable in a case such as this.
I would accept that those who agree to be bound by the Rules of Racing have no effective alternative to doing so if they want to take part in racing in this country. It also seems likely to me that if, instead of Rules of Racing administered by the Jockey Club, there were a statutory code administered by a public body, the rights and obligations conferred and imposed by the code would probably approximate to those conferred and imposed by the Rules of Racing. But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review. It would in my opinion be contrary to sound and long-standing principle to extend the remedy of judicial review to such a case.

‘It is unnecessary for purposes of this appeal to decide whether decisions of the Jockey Club may ever in any circumstances be challenged by judicial review and I do not do so. Cases where the applicant or plaintiff has no contract on which to rely may raise different considerations and the existence or non-existence of alternative remedies may then be material. I think it better that this court should defer detailed consideration of such a case until it arises. I am, however, satisfied that on the facts of this case the appeal should be dismissed.’

Sir Thomas Bingham MR, Farquharson LJ, Hoffmann LJ
[1993] 1 WLR 909, [1992] EWCA Civ 7
Bailii
Civil Procedure Rules 54
England and Wales
Citing:
CitedLaw v National Greyhound Racing Club Limited CA 29-Jul-1983
The plaintiff alleged abuse of the discretion conferred on the club by the rules. His trainer’s licence had been suspended. He said that it was contrary to an implied term of an agreement between the trainer and the racing club that any action taken . .

Cited by:
CitedWright v The Jockey Club QBD 15-May-1995
A jockey had been refused a jockey’s licence for medical reasons. He sought damages for his loss of earnings. The club applied to strike out the claim as showing no arguable cause of action.
Held: The duties of a body exercising a licensing . .
CitedMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

Lists of cited by and citing cases may be incomplete.

Company, Natural Justice, Civil Procedure Rules, Administrative

Leading Case

Updated: 01 November 2021; Ref: scu.197904

Al Rawi and Others v The Security Service and Others: CA 4 May 2010

Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory authority, could order a closed material procedure for part or all of the trial of a civil claim for damages in tort and breach of statutory duty.
Held: The appeal succeeded. The court had no such power in an ordinary claim for damages. To allow the use of such procedures in ordinary civil trials would fundamentally undermine the common law. It was not permitted by the Civil Procedure Rules, while also being disproportionately expensive. The CPR made exceptions in limited areas, but not generally.
Lord Neuberger MR said: ‘The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR, (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.’

Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ
[2010] EWCA Civ 482, [2010] 4 All ER 559, [2010] UKHRR 728, [2010] CP Rep 37, [2010] NPC 51, [2010] 3 WLR 1069
Bailii, Times
Civil Procedure Rules
England and Wales
Citing:
CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Appeal FromAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedDuke of Dorset v Serjeant Girdler 1720
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the . .
CitedA v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedDuncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
CitedHome Office v Tariq CA 4-May-2010
The claimant began proceedings against his employer, the Immigration Service after his security clearance was withdrawn. He complained that the respondent had been allowed by the Tribunal to present evidence he was not himself allowed to see and . .
CitedMohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
CitedKanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedRegina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
CitedConway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
CitedRegina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedScience Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedTombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9) CA 17-Dec-2008
The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedA and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
CitedMalik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
CitedSecretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .

Cited by:
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Appeal fromAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another Admn 21-Dec-2011
The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.409218

Clarkson v Gilbert and others: CA 14 Jun 2000

The court considered the restrictions on lay representatives appearing in court as the related to relatives of the party.
Held: The same objections to granting rights of audience did not apply to a husband who merely wished to assist his wife by representing her in court. Where a close relative was seeking to represent a party the question was whether there was good reason on the facts to grant it, such as ill health or lack of means.
Lord Woolf CJ said: ‘The overriding objective is that the courts should do justice. Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody’s health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.’
He qualified the decision in D v S saying: ‘what I indicated in that case was intended for a situation which was of the sort there described and did not deal with a situation where a husband wished to appear for his wife. It does not matter whether it is said that the position is different in that case or whether it is said that the fact that a husband wishes to appear for somebody who is part of the same family makes it an exceptional situation. It is clear that the objections to someone setting themselves up as an unqualified advocate do not exist in a matter where a husband is merely seeking to assist his wife.’
In this case: ‘I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate.’
Waller LJ said: ‘I agree with my Lord on the proper principles to be applied to an application for a close relative to represent a litigant in person in order to have that right of audience. I also associate myself with my Lord’s remarks in relation to his judgment in D v S (Rights of Audience) [1997] 1 FLR 724; I was a party to that judgment on that occasion. The position of a close relative seeking to exercise a right of audience is very different from the circumstances with which that case was concerned and it is unfortunate that the judge was possibly misled into applying a wrong test, as he did.’
Clarke LJ said: ‘I agree with both judgments. The judge directed himself that the question which he should answer was whether there were exceptional circumstances which justified granting Mr Keter rights of audience under s 27(2)(c) of the Courts and Legal Services Act 1990. I agree with my Lords that that is not the relevant question in a case of this kind. As I see it, the question is simply whether, in all the circumstances of the case, the court should exercise its discretion under s 27(2)(c). The section does not in any way fetter the exercise of the court’s discretion, although the discretion must be exercised in the light of the objective of Part II of the Act set out in s 17(1) and of the general principle set out in s 17(3). In exercising the discretion in any particular case, I agree that the court must have in mind the general principles referred to by Lord Woolf. There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly. For example, in a case where the proposed advocate is holding himself out as providing advocacy services, whether for reward or not, the court will only make an order under s 27(2)(c) in exceptional circumstances: D v S (Rights of Audience) [1997] 1 FLR 724. On the other hand, where the proposed advocate is a member of the litigant’s family, the position is likely to be very different, although, as this case shows, even in such cases the circumstances may vary widely.
There is, in my judgment, no warrant for holding that in such cases an order should only be made in exceptional circumstances. To my mind there is nothing in any of the decisions to which we were referred, including D v S (Rights of Audience) [1997] 1 FLR 724, which requires us so to hold. All will depend upon the circumstances.
It follows that the judge did not ask the correct question and that it is for this court to exercise its own discretion. That discretion should only be exercised for good reason. The question is whether, having regard to the general principles set out by Lord Woolf, there is good reason on the facts of this case to permit Mr Keter to speak on behalf of the claimant at the forthcoming interlocutory applications and at any trial. To put it another way: is it just to permit him to do so?’

Lord Woolf CJ, Aldous and Waller LJJ
[2000] EWCA Civ 3018, [2000] CP Rep 58, [2000] 3 FCR 10, [2000] 2 FLR 839, [2000] Fam Law 808
Bailii
Courts and Legal Services Act 1990 27(2)(c)
England and Wales
Cited by:
CitedIn Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Legal Professions, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.276309

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 injunction.
Held: The case of Burris was instructive. New powers were available including ASBOs and under the Public Order Act 1986, but the order was continued until trial.

Mackay The Honourable Mr Justice Mackay
[2004] EWHC 1231 (QB)
Bailii
Civil Procedure Rules 19.6, European Convention on Human Rights 10 11, Protection from Harassment Act 1997, Public Order Act 1986 16
England and Wales
Citing:
CitedBurris v Azadani CA 27-Jul-1995
The court addressed the principles upon which a Court will grant interlocutory injunctive relief in harassment cases.
Held: Both the High Court and the County Court had jurisdiction under the 1981 and 1984 Acts to grant interlocutory . .
CitedDirector of Public Prosecutions v Dziurzynski QBD 28-Jun-2002
The defendant was an animal rights protester who had been accused under the Act of harassing the company and its employees.
Held: The act was intended to be used to protect individuals, and not companies. Two incidents were alleged, but no . .
CitedM. Michaels (Furriers) Limited v Askew and Others CA 25-Jun-1983
The court heard an appeal against injunctions granted in an animal rights protest context against named Defendants on their own behalf and on behalf of other members of an unincorporated association.
Held: Appeal denied. Care had to be taken . .

Cited by:
See AlsoHuntingdon Life Sciences Group Plc and Another v Stop Huntingdon Animal Cruelty and others QBD 21-Oct-2005
The members of the anti-vivisection association appealed against an order for costs against the Association and its members at large.
Held: It was possible to make an order against an association and its un-named members. The association had a . .
See AlsoHuntingdon 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 . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Human Rights, Torts – Other

Updated: 01 November 2021; Ref: scu.197866

Thomson v Berkhamsted Collegiate School: QBD 2 Oct 2009

Costs were to be sought against third parties to the action. A pupil had taken court action against the school seeking damages, alleging that it had failed to protect him from bullying. His action was discontinued. The school now sought its costs (andpound;250,000) from his parents, who had funded their son’s claim. The school sought disclosure of various documents.
Held: The court had power to make any necessary ancillary orders in a costs application. General principles were set down: ‘i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.
ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of ‘pure funders’ means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party’s funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court’s discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.’
In this case the parents were not acting in a disinterested fashion. There was a reasonable prospect of the claim for third party costs succeeding, and appropriate disclosure was ordered.

Blake J
[2009] EWHC 2374 (QB), [2010] CP Rep 5
Bailii
Supreme Court Act 1981, Civil Procedure Rules 48.2
England and Wales
Citing:
CitedDymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
CitedGrecoair Inc v Tilling and others QBD 14-Jan-2009
The court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order. . .
CitedPR Records Ltd v Vinyl 2000 Limited and others ChD 15-Jan-2008
The defendant in the main action sought a third party costs order. . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.375580

Fairclough Homes Ltd v Summers: SC 27 Jun 2012

The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against refusal of a strike out of the claim. The Court of Appeal said that it was clearly bound by authority.
Held: Applications for committal for contempt are an appropriate means of controlling, punishing and as far as possible eliminating, dishonesty in the conduct of civil proceedings.
Lord Clarke said: ‘notwithstanding the decision and clear reasoning of the Court of Appeal in Ul-Haq, the court does have jurisdiction to strike out a statement of case under CPR 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum. However, we further conclude, for many of the reasons given by the Court of Appeal, that, as a matter of principle, it should only do so in very exceptional circumstances.’
The court approved Masood v Zahoor, and ‘while the court has power to strike a claim out at the end of a trial, it would only do so if it were satisfied that the party’s abuse of process was such that he had thereby forfeited the right to have his claim determined.’
Lord Clarke JSC emphasised the importance of the Defendant’s ability, in a claim for damages, to make an offer on special terms as to costs: ‘There was much discussion in the course of the argument as to whether the defendant can protect its position in costs by making a Part 36 offer or some other offer which will provide appropriate protection. It was submitted that a Part 36 offer is of no real assistance because, if it is accepted, the defendant must pay the claimant’s costs under CPR 36.10. We accept the force of that argument. However, we see no reason why a defendant should not make a form of Calderbank offer (see Calderbank v Calderbank [1976] Fam 93) in which it offers to settle the genuine claim but at the same time offers to settle the issues of costs on the basis that the claimant will pay the defendant’s costs incurred in respect of the fraudulent or dishonest aspects of the case on an indemnity basis. In Fox v Foundation Piling Ltd [2011] EWCA Civ 790 the Court of Appeal correctly accepted at para 45 that the parties were entitled to make a Calderbank offer outside the framework of Part 36. The precise formulation of such an offer would of course depend upon the facts of a particular case, but the offer would be made without prejudice save as to costs and, unless accepted, would thus be available to the defendant when the issue of costs came to be considered by the trial judge at the end of a trial.’.

Lord Hope, Deputy President , Lord Kerr, Lord Clarke, Lord Dyson, Lord Reed
[2012] 1 WLR 2004, [2012] UKSC 26, [2012] 4 Costs LR 760, [2012] 4 All ER 317, UKSC 2010/0212
Bailii, Bailii Summary, SC Summary, SC
Civil Procedure Rules 3.4(2) 32.14(1)
England and Wales
Citing:
CitedArrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
CitedWidlake v BAA Ltd CA 23-Nov-2009
The claimant had succeeded in her action for personal injuries, but now appealed against the awarding of costs to the defendant. The dispute had been substantialy as to the nature and effect of her injuries. She had not disclosed earlier injury to . .
Appeal fromSummers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
CitedShah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
CitedManifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .
CitedAXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
CitedAgapitos and Another v Agnew and others CA 6-Mar-2002
Insurers resisted a claim saying that fraudulent acts of the defendants to promote an otherwise valid claim, made the entire claim void. The insurance required certificates to be obtained before ‘hot’ works were undertaken as part of the ship’s . .
CitedGlasgow Navigation Co v Iron Ore Co HL 1910
Lord Lorebum said: ‘It is not the function of a court of law to advise the parties as to what would be their rights under a hypothetical state of facts’. . .
CitedWebster v Bakewell Rural District Council (No 2) 1916
The plaintiff was life tenant of a cottage adjoining the highway. Over a period of time, scrapings from the road had accumulated to form a bank which suited the plaintiff. The defendant, wanting to repair the roadway, removed the bank, and the . .
CitedLondon Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
CitedBentley v Jones Harris and Company CA 2-Nov-2001
Latham LJ said: ‘it will only be in a rare case that the judge should be asked to determine the issues before him before all the evidence has been completed. However, it seems to me that, if a judge concludes at the end of a claimant’s evidence, . .
ApprovedZahoor and Others v Masood and Others CA 3-Jul-2009
It was argued that the judge should have struck the claim out as an abuse of process on the ground that some at least of the claims were based on forged documents and false written and oral evidence.
Held: Arrow Nominees was authority for the . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedPressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
CitedThe Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
CitedAsiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
CitedFox v Foundation Piling Ltd CA 7-Jul-2011
Parties are entitled to make a Calderbank offer outside the framework of Part 36. The precise formulation of such an offer would of course depend upon the facts of a particular case, but the offer would be made without prejudice save as to costs . .
CitedAktas v Adepta CA 22-Oct-2010
The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
ApprovedSouth Wales Fire and Rescue Service v Smith Admn 10-May-2011
Moses LJ said: ‘For many years, the court sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a . .
ApprovedNational Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .

Cited by:
CitedMakudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
makudi_triesmanQBD2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
CitedAirbus Operations Ltd v QBE Insurance Company (UK) Ltd and Another Admn 14-Dec-2012
The defendants sought to have the claimant committed for contempt, alleging that in exaggerating his symptoms, he had sought to inflate the amount of his damages claim.
Held: Contempt was found. Some of the allegations were found to have been . .
CitedOtkritie 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 . .
CitedWyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
CitedLondon Borough of Havering, Regina (on The Application of) v Bowyer and Others Admn 27-Jul-2012
The court considered the sentencing of defendants for making false claims.
Held: The defendants each received immediate sentences of imprisonment ranging from one month to four months. . .
CitedHayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
AppliedTuson v Murphy CA 22-Jun-2018
The claimant won her personal injury case, but appealed from an order to pay the defendant’s costs after she had failed to declare her attempt to begin a business.
Held: The Claimant’s modest attempts to run a playgroup did not amount to . .
CitedTurley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
CitedHughes Jarvis Limited v Searle Misc 27-Apr-2018
(Oxford County Court) An application was made for the committal for contempt of a party. The court had adjourned overnight while he was giving evidence, and despite being warned against communicating with anyone else, had sent numerous emails to his . .
CitedHughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice, Civil Procedure Rules, Contempt of Court, Costs

Updated: 01 November 2021; Ref: scu.460911

Smithkline Beecham Plc and Another v Apotex Europe Ltd and others: CA 16 Dec 2004

Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an indemnity basis, saying the court had certified the patent valid at first instance, and that the appeal was a subsequent proceeding when indemnity costs ought to be ordered under the 1977 Act. Apotex said that the appeal was part of the same proceedings. That was correct. Nevertheless the CPR also applied, and the court used rule 44.3 to take the costs questions on an issue by issue basis.

Lord Justice Ward Lady Justice Arden Lord Justice Jacob
[2004] EWCA Civ 1703, Times 12-Jan-2005, [2005] FSR 24, [2005] 2 Costs LR 293
Bailii
Patents Act 1977 65, Civil Procedure Rules
England and Wales
Citing:
CitedSmithkline Beecham Plc v Apotex Europe Limited CA 29-Nov-2004
. .
CitedRe Elgindata Ltd (2) CA 15-Jul-1992
A successful plaintiff who had not been shown to have behaved improperly or unreasonably was not to have his costs reduced or be ordered to pay any part of his opponents costs for having pursued some unsuccessful points. Nourse LJ said that ‘(i) . .
CitedStena Rederi Aktiebolag, Stena Line Aktiebolag v Irish Ferries Ltd. CA 13-Feb-2003
. .
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedRediffusion v Singer Link CA 1993
In Patent infringement proceedings it may be proper for a court to assess costs on an issue by issue basis because of the ‘large number of issues and the very extensive costs that can be incurred.’ . .
CitedSummit Property Ltd v Pitmans CA 19-Nov-2001
Whilst surprising, it was possible that a successful claimant could be ordered to pay the majority of a defendant’s costs. Under the Civil Procedure rules, it was proper to order costs on an issue by issue basis. . .

Cited by:
CitedSmithkline Beecham Plc v Apotex Europe Limited CA 29-Nov-2004
. .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Costs, Civil Procedure Rules

Leading Case

Updated: 01 November 2021; Ref: scu.220352

Secretary of State for Communities and Local Government v Bovale Ltd and Another: CA 11 Mar 2009

The applicant had sought to quash a refusal of its plannng application. An order had been made for the service of evidence, and the judge had set down an order which was expressed to be of more general application. The Secretary of State now appealed saying that the order had been ultra vires the judge.
Held: The judge had acted beyond his powers in attempting to fill a gap in the rules. The rules had the force of delegated legislation, and any variation might only be with the consent and authority of the Lord Chancellor. It had not been intended that court judgments would be part of the scheme of making Rules. The Commercial Court Guide has no formal status: it provides only guidance.

Lord Justice Waller, Lord Justice Dyson and Lord Justice Stanley Burnton (dissenting)
[2009] EWCA Civ 171, Times 23-Mar-2009, [2009] ACD 31, [2009] CP Rep 27, [2009] 2 P and CR 7, [2009] 3 All ER 340
Bailii
Civil Procedure Rules 8, Constitutional Reform Act 2005, Civil Procedure Act 1997 5(1)
England and Wales
Citing:
Appeal fromBovale Ltd v Secretary of State for the Communities and Local Government and Another Admn 1-Sep-2008
Application was made to appeal against procedural orders in the course of a challenge to a refusal of planning permision. . .
Appeal fromBovale Ltd, Regina (On the Application of) v Secretary Of State for Communities and Local Government and Another Admn 13-Oct-2008
Application to quash a decision of an inspector appointed by the first defendant to determine the claimant’s appeal against the decision of the second defendant to refuse planning permission for the development of what was described in the . .

Cited by:
CitedBrown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
CitedBrook v Reed CA 25-Mar-2011
The court was asked ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’ The bankrupt had considered that the costs first awarded to the trustee in bankruptcy and the trustee’s . .

Lists of cited by and citing cases may be incomplete.

Planning, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.317955

Chase v Newsgroup Newspapers Ltd: CA 3 Dec 2002

The defendant appealed against a striking out of part of its defence to the claim of defamation, pleading justification.
Held: The Human Rights Convention had not itself changed the conditions for a plea of justification based upon reasonable belief that the claimant had acted criminally. The three conditions were: the inability to rely upon hearsay, the focusing in the defence on behaviour of the claimant giving rise to suspicion, and that evidence post dating the publication could not be pleaded. The Shah case had failed to take account of the admissibility of hearsay under the 1995 Act, and now also Rule 33.
Brooke LJ identified three possible defamatory meanings that might be derived from a publication alleging police investigations into the conduct of a claimant: ‘The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.’

Lord Justice Brooke, Lord Justice Keene, Lord Justice Rix
Times 31-Dec-2002, [2002] EWCA Civ 1772, [2003] EMLR 218, [2003] EMLR 11
Bailii
European Convention on Human Rights, Civil Evidence Act 1995, Civil Procedure Rules 33
England and Wales
Citing:
ExplainedShah and Another v Standard Chartered Bank CA 2-Apr-1998
The plaintiffs appealed against refusal of orders striking out the defences of justification to their libel action.
Held: The words complained of bore an accusation of money laundering. A plea of justification based upon a reasonable belief in . .
Appeal fromChase v News Group Newspapers Ltd QBD 29-May-2002
A libel defence of justification which was based on ‘reasonable grounds for suspicion’ must focus on conduct of claimant that gives rise to suspicion. It was not permissible to rely upon hearsay. Defendant may not plead as ‘grounds’ material which . .
CitedJackson v John Fairfax and Sons Ltd 1981
(New South Wales) Discussing the provisions of the NSW Defamation Act 1974 section 16, Hunt J said: ‘It is, in my view, basic to the scheme of section 16 that both of the imputations in question (that is, the imputation pleaded by the plaintiff and . .
CitedStern v Piper and Others CA 21-May-1996
The defendant newspaper said that allegations had been made against the plaintiff that he was not paying his debts. In their defence they pleaded justification and the fact that he was being sued for debt.
Held: A defamation was not to be . .
CitedLucas-Box v News Group Newspapers Ltd; Polly Peck (Holdings) Plc v Trelford, Viscount De L’Isle v Times Newspapers Ltd CA 1986
Justification To be Clearly Set Out
The former practice which dictated that a defendant who wished to rely on a different meaning in support of a plea of justification or fair comment, did not have to set out in his defence the meaning on which he based his plea, was ill-founded and . .

Cited by:
CitedJameel and Another v Times Newspapers Limited CA 21-Jul-2004
The defendant had published a newspaper article linking the claimant to terrorist activity. The defendants argued that no full accusation was made, but only that the claimant was under investigation for such behaviour, and that the article had . .
CitedJameel and Another v Wall Street Journal Europe Sprl (No 2) CA 3-Feb-2005
The claimant sought damages for an article published by the defendant, who argued that as a corporation, the claimant corporation needed to show special damage, and also that the publication had qualified privilege.
Held: ‘It is an established . .
CitedMiller v Associated Newspapers Ltd QBD 8-Apr-2005
. .
CitedFallon v MGN Ltd QBD 10-Apr-2006
The claimant sought damages in defamation.
Held: Questions as to what inferences can be drawn from betting patterns when assessing a jockey’s motives are not within the expertise of a racing-riding expert witness. . .
CitedCuristan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
CitedPrince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
CitedFlood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
CitedBond v British Broadcasting Corporation QBD 19-Mar-2009
The court set out to establish the natural and ordinary meanings to be attached to the words complained of in a defamation action, and found defamatory meanings under Chase two principles. . .
CitedBudu v The British Broadcasting Corporation QBD 23-Mar-2010
budu_bbcQBD2010
The defendant sought to strike out the claimant’s action in defamation. It had reported that the police had withdrawn an employment offer to claimant after doubting his immigration status.
Held: The claims should be struck out. The articles . .
CitedMiller v Associated Newspapers Ltd QBD 31-Mar-2010
The claimant sought damages in defamation, saying that the defendant newspaper (Daily Mail) had implied abuse of his friendship with a Police Commissioner to obtain contracts. The defendant denied any meaning defamatory of the claimant.
Held: . .
CitedHorlick v Associated Newspapers Ltd QBD 24-Jun-2010
The court was asked for preliminary rulings as to meanings in a defamation action. She complained of articles regarding the failure of a business enterprise.
Held: The court’s task is well settled: ‘The judge should give the relevant article . .
CitedWright v Gregson and Others QBD 1-Jul-2010
The defendant denied that the words complained of were bore the defamatory meaning alleged, and asked the court to rule accordingly and to strike out he claim. He complained of comments about his intentions for the use of money raised for charitable . .
CitedFlood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
CitedMakudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
makudi_triesmanQBD2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
CitedMcAlpine v Bercow QBD 24-May-2013
The claimant alleged defamation in a tweet by the defendant. The court now decided as a preliminary point, the meaning of the words: ‘Why is Lord McAlpine trending? *Innocent face*’. There had been other but widespread (mistaken) allegations against . .
CitedBrown v Bower and Another QBD 31-Oct-2017
Judgment on issues of meaning and whether defamatory.
As to the Chase levels of meaning: ‘They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory . .
CitedKoutsogiannis v The Random House Group Ltd QBD 18-Jan-2019
Settling Meaning in Defamation Cases
Nicklin J set out the approach to meaning in defamation actions: The Court’s task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the . .
CitedHayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Defamation, Human Rights, Civil Procedure Rules

Leading Case

Updated: 01 November 2021; Ref: scu.178467

Shah and Another v HSBC Private Bank (UK) Ltd: QBD 26 Jan 2009

The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The bank requested that the claims be struck out. The claimants sought permission to amend their claims.
Held: The law is a developing area. As to the level of suspicion required to trigger a duty to report funds: ‘All that is required is that there is a suspicion. If there is, then POCA is triggered regardless of the reasonableness of that suspicion. ‘ and ‘Suspicion is something less than proof. It is also straightforward. In the context of a bank, the relevant employee either suspects or he does not. If he does, he must inform the authorities. Parliament intended suspicion as a subjective fact to be sufficient (1) to expose a person to criminal liability for money laundering and (2) to trigger disclosures to the authorities. Parliament did not require, in addition, that the suspicion be based upon ‘reasonable’ or ‘rational’ grounds. There are good practical reasons for this. Unlike law enforcement agencies, banks have neither the responsibility nor the expertise to investigate criminal activity to satisfy themselves that the grounds for their suspicion are well founded, reasonable or ‘rational’.’
The effect of the Act was to suspend the normal contractual duties between client and bank. The customer could claim only if it could show bad faith (which was not pleaded) or negligence. The requested amendment to allow a claim for breach of confidence failed. Nor could the claimant request the reasons for the disclosure.

Hamblen J
[2009] EWHC 79 (QB), [2009] Lloyd’s Rep FC 225, [2009] 1 Lloyd’s Rep 328, [2009] 6 EG 100
Bailii
Civil Procedure Rules, Proceeds of Crime Act 2002 328
England and Wales
Citing:
CitedCobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
CitedUMBS Online, Regina (on the Application Of) v Serious Organised Crime Agency CA 21-Mar-2007
Application for leave to appeal against refusal of leave to bring judicial review of a decision of the respondent agency. Leave to appeal was granted, but the matter was returned to the administrative court for review. . .
CitedK Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedDa Silva, Regina v CACD 11-Jul-2006
The defendant appealed her conviction for assisting another to retain the proceeds of crime. The court considered what was meant by ‘suspicion’.
Held: For a defendant to be convicted of an offence under section 93A(1)(a) of the 1988 Act, he or . .
CitedBarclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
CitedWeld-Blundell v Stephens HL 1920
A physical cause may be irrelevant as a matter of law. The law is concerned not with causation, but with responsibility. Lord Sumner said: ‘more than half of human kind are tale-bearers by nature’.
Where a legal wrong was committed without loss . .
CitedWilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
CitedKpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
CitedChristopher Hill Ltd v Ashington Piggeries Ltd CA 1969
The buyer suppied a food formula to a food mixer and claimed damages when the food mix injured his mink. The defendant argued that the level of damages sought exceeded that expectations of the parties when the contract was entered into.
Held: . .
CitedBarclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .

Cited by:
CitedShah and Another v HSBC Private Bank (UK) Ltd (Costs) CA 4-Feb-2010
. .
Appeal fromShah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
See AlsoShah and Another v HSBC Private Bank (UK) Ltd QBD 4-Jul-2011
The claimants sought very substantial damages against the bank, arising from the bank’s delay in executing four transactions. The defendant said that it suspected that the proposed transactions concerned criminal property and that, in those . .
See AlsoShah and Another v HSBC Private Bank (UK) Ltd CA 13-Oct-2011
. .
See AlsoShah and Another v HSBC Private Bank (UK) Ltd CA 30-Nov-2011
Appeal against refusal of permission to amend pleadings. The claimants suffered large losses after the bank delayed implementing his instructions after staff members initiated a report under the 2002 Act. The claimant said that the evidence . .
See AlsoShah and Another v HSBC Private Bank (UK) Ltd QBD 16-May-2012
The Claimants claimed damages in a sum in excess of US$300,000,000 arising out of delays by the Defendant, their bankers, in executing four transfers from the Claimants’ account during the period September 2006 to March 2007 and the Defendant’s . .
See AlsoShah and Another v HSBC Private Bank (UK) Ltd QBD 5-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Banking, Criminal Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.280155

Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2): CA 19 Dec 2001

The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court order. One was applied for, and the claimant was given the information and given his costs. The respondents appealed that costs order. In a Norwich Pharmacal situation, the normal rule on costs under CPR cannot apply. It is more akin to pre-action discovery.
The costs order was wrong: ‘in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court. ‘

Lord Jusice Aldous, Lord Justice Sedley, Lady Justice Arden
Times 10-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 1897, [2002] 1 WLR 2450, [2002] EMLR 358, [2003] 2 All ER 872, [2002] FSR 50, [2002] CP Rep 22, [2002] EMLR 20, [2002] 1 WLR 1233, [2002] Masons CLR 3
Bailii
Data Protection Act 1998 6 35, Civil Procedure Rules 44.3, Contempt of Court Act 1981 10
England and Wales
Citing:
CitedNorwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Appeal fromTotalise Plc v Motley Fool Ltd and Another QBD 15-Mar-2001
A web site operator who declined responsibility for the moderation of a chat room on the site, but did take steps to remove a poster making defamatory remarks, could not rely upon the Act to resist disclosure of the identity of the author. The Act . .
CitedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .

Cited by:
CitedSheffield Wednesday Football Club Ltd and others v Hargreaves QBD 18-Oct-2007
The defendant operated a web forum in which posters posted defamatory messages about the claimants. The claimants sought an order disclosing the contact details of the members of the forum. The owner of the forum said he had undertaken not to . .
CitedSmith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
CitedSmith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
CitedBunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
CitedTwentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
CitedCartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

Costs, Civil Procedure Rules, Media, Information

Leading Case

Updated: 01 November 2021; Ref: scu.167216

Hansom and others v E Rex Makin and Wright: CA 18 Dec 2003

The court considered a strike out application.
Held: Although there might be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair trial is still possible, relief will necessarily be granted: ‘CPR 3.9 deals generally with the relief from sanctions imposed for failure to comply with a rule, practice direction or court order. It could not be the case that whenever such a sanction has been imposed and however flagrant or persistent the failure, the defaulting party could have it set aside by showing that a fair trial was still possible. The present appeal does not, however, involve flagrant or persistent misconduct, but, rather, all too familiar inefficiency and lack of diligence. And in such a case it is likely to be very material that a fair trial is still possible. But this cannot necessarily be decisive. All the circumstances must be considered. Prejudice to professional defendants is among them and it may exist even though it does not involve prejudice to the fairness of the trial process. In the present case, prejudice in the form of the detriment involved in having litigation hanging over professional defendants’ heads was a decisive factor identified by the master and judge.’

Lord Justice Keene Lord Justice Mance
[2003] EWCA Civ 1801
Bailii
Civil Procedure Rules 3.9
England and Wales
Cited by:
CitedTisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
CitedSunley v HMP Durham EAT 12-Mar-2009
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and . .
CitedWelsh v Parnianzadeh (T/A Southern Fried Chicken) CA 10-Dec-2004
The respondent had claimed in damages after an alleged personal injury sustained at the premises of the claimant. After several procedural failures, the claim was struck out, but on appeal, it was ordered: ‘The appellant’s appeal is thus dismissed . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Civil Procedure Rules, Litigation Practice

Updated: 31 October 2021; Ref: scu.191203

Brown and Others v InnovatorOne Plc and Others: ComC 19 Jun 2009

The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by fax.
Held: The service had not been valid. The claimant effectively argued for the right to serve by fax even where it had been told that the solicitors did not have instructions to accept service.
Andrew Smith J said: ‘there is no apparent reason [under CPR Part 6] that the fact that a defendant’s solicitor has a fax number on his writing paper should mean that the solicitor can be validly served, but it makes perfect sense for this to mean that, if the claimant has been told that the solicitor may be served, then service upon him may be by fax.’
Service without confirmation that the solicitor had instructions to accept them, and without confirmation that they would accept service by fax was ineffective.
As to the request for an order allowing service: ‘even if exceptional circumstances are not required to justify a retrospective order under CPR rule 6.15, the court should adopt a rigorous approach to an application by a claimant for indulgence. After all, the rule does stipulate that an order should be made only where it appears that there is ‘a good reason’ to do so . . ‘

Andrew Smith J
[2009] EWHC 1376 (Comm)
Bailii
Civil Procedure Rules 6.4, Civil Procedure (Amendment) Rules 2008
England and Wales
Citing:
CitedMolins Plc v G D Spa CA 29-Mar-2000
In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served . .
CitedElmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
CitedMarconi Communications International Ltd v Pt Pan Indonesia Bank Ltd Tbk ComC 4-Feb-2004
Marconi claimed damages for the defendant’s alleged breach of contract in respect of the latter’s failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleged that Panin Bank wrongfully failed to accept drafts properly . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedCollier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
CitedAnderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
CitedSecretary of State for Communities and Local Government v Bovale Ltd and Another CA 11-Mar-2009
The applicant had sought to quash a refusal of its plannng application. An order had been made for the service of evidence, and the judge had set down an order which was expressed to be of more general application. The Secretary of State now . .
CitedKuenyehia and others v International Hospitals Group Ltd CA 25-Jan-2006
Service of litigation documents by fax was not an acceptabe departure from the rules where the party being served had not beforehand given consent to service in this manner. The mere advertisement of a fax number did not amount to such consent. Such . .

Cited by:
See AlsoBrown and Others v InnovatorOne Plc and Others ComC 28-Jul-2010
The claimants alleged breach of trust by the defendants in their promotion of an investment scheme which went on to fail. One defendant, a Swiss bank now sought a declaration that the court had no jurisdiction over it.
Held: The defendant’s . .
See AlsoBrown and Others v InnovatorOne Plc and Others ComC 18-May-2012
The claimants had been advised to invest in a scheme promoted by the defendants with the assistance of their solicitors. On the failure of the scheme they now sought relief alleging inter alia, breach of trust.
Held: The claims failed. In . .
CitedSmart v The Forensic Science Service Ltd CA 2-Jul-2013
On a search of his house, the police found a bullet cartridge on the claimant’s property. It was sent for testing but due to a mistake it was reported as a live cartridge. The prosecution was only dropped after some months when the mistake was . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 31 October 2021; Ref: scu.347123

M, Regina (on The Application of) v The Parole Board and Another: Admn 22 May 2013

(Jan 2013) The court was asked whether an order for anonymity made in the course of proceedings for judicial review should be discharged upon the application of media and other interested parties. Various newspapers had applied for the order to be discharged. Expert evidence from the hospital was to the effect that disclosure may damage not only the patient’s treatment, but also his victims’ relatives, and the general work of the hospital.
Held: ‘It is a cornerstone of the rule of law that public justice should be publicly reported unless the interests of justice otherwise require’
Pitchford LJ, Simon J
[2013] EWHC 1360 (Admin), [2013] EMLR 23
Bailii
Civil Procedure Rules 39.2
England and Wales
Cited by:
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
See AlsoC v Secretary of State for Justice Admn 2014
The claimant sought to challenge a refusal to him, as a long standing convicted murderer of unsupervised leave from prison as part of a path to release. He was detained in a secure mental hosptal. The court now considered whether the claimant and . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.510018

Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others: CA 28 Jun 2002

The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as unreasonable, and detained him further under 5(3).
Held: If the hospital authority considered the tribunal’s decision unreasonable, it must first apply for judicial review, rather than detain the patient. A second tribunal had since decided how should not be released in any event, but the principle was important. The procedure should be by way of judicial review under rule 54.10. A judicial review decision did re-write history, in setting aside a decision, and therefore the fact that events following the decision had been concluded was no bar. It was therefore equally possible to order a stay under the same procedure.
Dyson L.J. stated that the purpose of a stay in judicial review is clear: ‘It is to suspend the ‘proceedings’ that are under challenge pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success. In Avon, Glidewell LJ said that the phrase ‘stay of proceedings’ must be given a wide interpretation so as to apply to administrative decisions. In my view it should also be given a wide interpretation so as to enhance the effectiveness of the judicial review jurisdiction. A narrow interpretation, such as that which appealed to the Privy Council in [Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd. [1991] 1 W.L.R. 550] would appear to deny jurisdiction in case A [i.e. where the tribunal ordered discharge, but the order had not yet taken effect because the tribunal directed that the discharge was to be deferred to a specific future date]. That would indeed be regrettable and, if correct, would expose a serious shortcoming in the armoury of powers available to the court when granting permission to apply for judicial review . . [It] is common ground that ‘proceedings’ includes not only the process leading up to the making of the decision itself. The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission.’
Dyson LJ also discussed the effect of the lack of resources on litigation: ‘I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.’
Simon Brown LJ based his reasoning on the rule of law, stating: ‘. . the tribunal’s view must prevail; the authority cannot simply overrule the discharge order. Court orders must be respected – the rule of law is the imperative here.’
Lord Justice Simon Brown, Lord Justice Mummery and Lord Justice Dyson
Times 10-Jul-2002, Gazette 01-Aug-2002, Gazette 05-Sep-2002, [2002] EWCA Civ 923, [2003] 1 WLR 127, 70 BMLR 40
Bailii
Mental Health Act 1983 3 5(3), Civil Procedure Rules 54.10
England and Wales
Cited by:
CitedPaterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .
CitedCala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
CitedT, Regina (on The Application of) v Legal Aid Agency and Others Admn 26-Apr-2013
In care proceedings, an order had been made for the preparation of an expert report. The legally aided children applied to the defendant for assistance. It allowed a sum less than the minimum figure set by the expert company as a fee for doing the . .
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.174112

Smithkline Beecham Plc/BASF AG v Generics (UK) Limited / Smithkline Beecham Plc: CA 25 Jul 2003

The claimant had been involved in patent infringement proceedings. Papers had been disclosed to them under confidentiality conditions imposed by the judge. In these subsequent proceedings, they sought leave to use the material.
Held: An order was made under rule 31.22 permitting such use. Where the papers had not properly formed part of the court’s judgment, it was appropriate that the confidentiality restriction should remain. However, it was possible for the judge to make them available for the specific second proceedings. The general protection would not be lost by the involvement of the defendant in the second proceedings, because they could be made subject to a similar order. The interests of justice were paramount. The owner’s proper interests could be protected and justice could not be done without their disclosure.
Lord Justice Aldous Lord Justice Chadwick Lord Justice Latham
[2003] EWCA Civ 1109, Times 25-Aug-2003, Gazette 11-Sep-2003, [2003] 4 All ER 1302, [2004] 1 WLR 1479
Bailii
Civil Procedure Rules 31.22.(2)
England and Wales
Cited by:
CitedMcKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
CitedTchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .
CitedArcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.185459

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 not open to any defendant to decree unilaterally that where a money claim is being made against it, it will not make a payment into court but will make a written offer on the basis that Part 36 will apply as though he had made a payment into court. ‘ in making the decision, the judge had been exercising a discretion, and that exercise should not be disturbed.
Lord Justice Waller Lord Justice Mance And Sir Christopher Staughton
[2004] EWCA Civ 1332
Bailii
Civil Procedure Rules 836 44
England and Wales
Citing:
CitedAmber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
CitedSouthampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk Colombo) CA 3-May-2001
The claimants operated the container terminal in Southampton. A crane was struck and damaged beyond repair by the defendants’ vessel. The crane was not replaced because before the casualty the claimants had ordered two new cranes. Loss of use of the . .
CitedCalderbank 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 . .
CitedCutts 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 . .
CitedCumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .
CitedFlynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
CitedMRW Technologies v Cecil Holdings 22-Jun-2001
The court heard an appeal against a Master’s order which had given the defendant permission under rule 36.6(5) to withdraw a Part 36 payment.
Held: The same considerations apply to giving permission to withdraw money in court as to refusing . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.216445

Petrotrade Inc v Texaco Ltd: CA 23 May 2000

Where a defendant failed to beat a claimant’s part 36 offer to settle, but judgment was given summarily the rule did not mean that the defendant was necessarily to be ordered to pay costs on an indemnity basis, and to pay interest. Summary judgment did not involve a trial as required by the rule, and the early and relatively cheap settlement indicated the absence of need for such a rule. Nevertheless a court retained a discretion to make such an award.
Lord Woolf MR
Times 14-Jun-2000, [2001] 4 All ER 853, [2002] 1 WLR 947, [2000] EWCA Civ 512, [2002] 1 Costs LR
Bailii
England and Wales
Cited by:
CitedKiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .
CitedThree 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 . .
Appeal fromInland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.135750

Ropac Ltd v Inntrepreneur Pub Co and Another: ChD 7 Jun 2000

There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a retrospective extension of time to comply with the order.
Held: The court retained the power to grant an order for extension of time even though the parties had previously agreed the terms of an ‘unless’ consent order and it had expressed time to be of the essence. The court’s case management powers had to be read in the light of the overriding objective as expressed in the Rules. Under the RSC the order in the case before him was in sufficiently clear terms to be a binding consent order with which the court would only have interfered in circumstances which would justify interference with a contract. Under the CPR however, the court had jurisdiction to extend time: ‘To my mind, the CPR therefore gives the Court rather more wide- ranging, more flexible powers than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objective to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that this means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.’
Neuberger J set out the process he had to apply to to extend time in respect of a consent order. He said at: ‘First, at least in general, if the order was a genuine consent order, that is representing a contractual agreement between the parties, and stated that, if a party did not do something within a specified time, then his claim or defence would be struck out or that there would be some other sanction, that represented a contract with which the court had no power to interfere, save in circumstances in which the court has power to interfere with a contract. That seems to me to be the effect of the judgments in Purcell v FC Trigell Limited [1971] 1 QB 359 – see at 365G per Winn LJ and 366D per Buckley LJ .’
Neuberger J
Times 21-Jun-2000, Gazette 29-Jun-2000, [2001] LandTR 10
Civil Procedure Rules 81
England and Wales
Citing:
CitedPurcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
CitedSiebe Gorman and Co Limited v Pneupac Limited CA 1982
Lord Denning MR discussed the meaning of ‘consent order’ saying: ‘There are two meaning to the words ‘by consent’. One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only . .
CitedTigner Welsh London Company Limited v Spiro 1992
. .

Cited by:
CitedDi Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
CitedWeston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
CitedCommunity Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
ccne_durhamCA10
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
CitedWatson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.88860

Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd: CA 3 Jul 2002

In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act had not changed the position established in the Godwin case, and rule 6.7. Service was on the day deemed under the rules irrespective of the actual day of service. The consequences were serious, but relatively easily avoided. Difficulties within the rules should be resolved by amending them. An order for alternative service may be made prospectively, but not retrospectively (6.8).
Mummery LJ said: ‘The objective is to minimise the unnecessary uncertainties, expense and delays in satellite litigation involving factual disputes and statutory discretion on purely procedural points . . Justice and proportionality require that there should be firm procedural rules which should be observed, not that general rules should be construed to create exceptions and excuses wherever those who could easily have complied with the rules, have slipped up and failed to do so.’
Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Mummery and Lady Justice Hale
Times 16-Jul-2002, Gazette 12-Sep-2002, [2002] EWCA Civ 933, [2002] 3 All ER 813, [2002] 1 WLR 3174
Bailii
Civil Procedure Rules 6.7 6.8, European Convention on Human Rights 6
England and Wales
Citing:
AffirmedGodwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
See AlsoPhelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Appeal fromRhiannon Anderton v Clwyd County Council (2) QBD 25-Jul-2001
The claim form had been issued only just before the limitation period expired. Under the rules it would have been deemed to have been served on a Sunday, the day before the expiry of the period, but evidence suggested it was not received until after . .

Cited by:
CitedWilkey and Another v British Broadcasting Corporation and Another CA 22-Oct-2002
The applicant’s claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge’s reasoning no . .
CitedCranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
AppliedBeanby Estates Ltd v Egg Stores (Stamford Hill) Ltd ChD 9-May-2003
The landlord had served a notice under the 1954 Act. The tenant served a counter notice, but the question was whether he was late, or out of time.
Held: The combination of the various provisions meant that the landlord’s notice had irrevocably . .
CitedBAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
CitedBasil Shiblaq v Kahraman Sadikoglu (No 2) ComC 30-Jul-2004
The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in . .
CitedBrennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
CitedFirstdale Ltd v Quinton ComC 5-Aug-2004
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that . .
CitedUphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .
CitedAsia Pacific (Hk) Ltd. and others v Hanjin Shipping Co Ltd (Hanjin Pennsylvania) ComC 7-Nov-2005
Various cargo owners sought damages against the owners of the ship which had suffered an explosion with the loss of the cargo. The defendants asserted limitation. Some claimants had agreed an extension of time. Proceedings were then issued but . .
CitedNussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
DistinguishedMucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
CitedBrown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.174190

Anglo-Eastern Trust Ltd and Another v Kermanshahchi: CA 22 Feb 2002

The claimant sought repayment of loans. The judge had refused summary judgement, but ordered the defendant to pay a sum into court, failing which his defence would be struck out. The defendant appealed saying the condition for making a conditional order did not apply.
Held: The judge had found that the defence might succeed, but that it was improbable. The judge was correct to make those findings on the evidence before him. The defendant argued that no evidence had been given as to his means, and ability to make the payment requested. The court should not make a conditional offer where the defendant could not meet that condition. Should the Court of Appeal hear such evidence? The issues here were not the same as the general issue of admission of new evidence by an appellate court. It was self evident in the particular circumstances that such evidence must be admitted. Having done so, the judge’s order was set aside.
Lord Justice Brooke, Lord Justice Mance, and Mr Justice Park
[2002] EWCA Civ 198, [2002] All ER (D) 321 (Feb)
Bailii
Civil Procedure Rules 24
England and Wales
Cited by:
See AlsoAnglo-Eastern Trust Ltd and Another v Kermanshahchi ChD 21-Oct-2002
The respondent sought deletion of a penal notice attached to a court order. The notice was not brought to the notice of the judge, but attached to the copy served.
Held: The words of rule 7(4) suggested that the penal notice might be attached . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.167952

Altomart Ltd v Salford Estates (No 2) Ltd: CA 29 Oct 2014

Reasons for grant of additional time to file respondent’s notice
Moore-Bick, Ryder LJJ, David Richards J
[2014] EWCA Civ 1408, [2015] 1 WLR 1825, [2014] WLR(D) 451, [2014] 6 Costs LR 1013, [2015] CP Rep 8
Bailii, WLRD
Civil Procedure Rules
England and Wales

Updated: 07 August 2021; Ref: scu.538146

Carnduff v Inspector Rock and Chief Constable West Midlands Police: CA 11 May 2001

The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information from him had formed a significant element in his arrest. They did not pay him, and he claimed in contract. The claim was struck out on the basis that it was embarrassing or abusive under rule 3.4, and he appealed.
Held: The appeal was dismissed. No court could investigate such a claim without becoming involved in examining in detail delicate and sensitive issues which would transfer the business of investigating and catching serious criminals into the public glare. It would, in this case, but not necessarily in every such case, be against public policy to allow that public investigation. The action should be stayed because no disclosure could be made of relevant documents in such a way as to enable the action to be properly determined.
Laws LJ said: ‘It seems to me that these matters cannot be litigated consistently with the public interest; and if that is so there is a plain jurisdiction to strike out the claim as embarrassing or abusive under CPR r3.4. See what is involved. If the disputes which they generate were to be resolved fairly by reference to the relevant evidence – and there is no other legitimate judicial means of proceedings – the court would be required to examine in detail the operational methods of the police as they related to the particular investigation in question.’ and ‘it is to my mind inevitable that the court’s duty would be to hold that the public interest in withholding the evidence about it outweighed the countervailing public interest in having the claim litigated on the available relevant evidence. In reality such a position could only be avoided if the police made comprehensive admissions which absolved the court from the duty to enter into any of these issues. But a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all.’
Lord Justice Waller, Lord Justice Laws And Lord Justice Jonathan Parker
Times 30-May-2001, Gazette 21-Jun-2001, [2001] EWCA Civ 680, [2001] 1 WLR 1786
Bailii
Civil Procedure Rules 3.4
England and Wales
Cited by:
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedCarnduff v The United Kingdom ECHR 10-Feb-2004
Admissibility – The applicant is a registered police informer. He commenced an action seeking to recover payment for information that he supplied to the West Midlands police. . .
Cited‘Laurence’ v Commissioners of Police for the Metropolis CA 13-Feb-2006
The claimant had been a police informer. He considered that he and his family had not been properly protected against the risks he incurred. . .
CitedHaralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
CitedBelhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.78909

North Range Shipping Ltd v Seatrans Shipping Corporation: CA 14 Mar 2002

The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly if the party knew the basis of the decision. The court should state which of the threshold conditions required under s 69 had not been met. The Court of Appeal did have the power to set aside a first instance judge’s decision for unfairness, and a decision without sufficient reasons was such.
Tuckey LJ said: ‘If, as is accepted, there is a residual jurisdiction in this court to set aside a judge’s decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself.’
Lord Justice Aldous, Tuckey LJ
Times 18-Apr-2002, [2002] EWCA Civ 405, [2002] 1 WLR 2397, [2002] 4 All ER 390
Bailii
Arbitration Act 1996 69(3), Human Rights Act 1988 6, Civil Procedure Rules 52.10(2)(a)
England and Wales
Citing:
CitedHenry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
DisapprovedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
See AlsoNorth Range Shipping Ltd v Seatrans Shipping Corporation CA 16-Jul-2001
. .

Cited by:
CitedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
ApprovedCGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd. CA 16-Oct-2006
Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that . .
CitedKing, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.169991

Mullock v Price (T/A The Elms Hotel Restaurant): CA 15 Oct 2009

The court was asked as to what issues were relevant when considering an application to set aside judgment in default and in particular when asking ‘whether the person seeking to set aside the judgment made an application to do so promptly’.
Ward, Sedley, Smith LJJ
[2009] EWCA Civ 1222, [2010] CP Rep 10
Bailii
Civil Procedure Rules 13.3(2)
England and Wales

Updated: 01 June 2021; Ref: scu.381575

Agodzo v Amegashitsie and Another: CA 20 May 1999

The judge had repeatedly adjourned a matter, directing that the parties should consider alternative dispute resolution. Since the first adjournment, the rules had been changed to allow a court to refer a case for such an arrangement. One party objected.
Held: The new power could be exercised even in an existing case, and therefore the objection, even if it succeeded, could not prevent a judge making a reference under the new rules upon its return.
[1999] EWCA Civ 1453
Civil Procedure Rules 26.4
England and Wales

Updated: 31 May 2021; Ref: scu.146368

Cala Homes (South) Limited v Chichester District Council: Admn 20 Aug 1999

A claim to set aside parts of a local plan had been filed in the wrong court, and without the forms as now required under the Civil Procedure Rules. A new application would be out of time. An application allowing transfer and correction of the faults succeeded, since the true nature of the claim was clear, and formal rules should not defeat compliance with a statutory time limit.
Times 15-Oct-1999, Gazette 02-Sep-1999, [1999] EWHC Admin 805
Bailii
Town and Country Planning Act 1990 287
England and Wales

Updated: 21 May 2021; Ref: scu.140069

Point Solutions Ltd v Focus Business Solutions Ltd and Another: ChD 16 Dec 2005

It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The declaration was refused. There was no explicit provision in copyright law for a declaration of non-infringement as was available in Patent proceedings. A party had to have some sufficient interest to found a request for a declaration. There was no expert evidence before the court as to whether infringement had in fact taken place. Nevertheless sufficient was said to lay doubt as to the provenece of the defendant’s software.
Her Honour Judge Frances Kirkham
[2005] EWHC 3096 (Ch)
Bailii
Civil Procedure Rules 40.20 C1-001, Patents Act 1977 71
England and Wales
Citing:
CitedIn re Clay; Clay and Booth CA 1919
A plaintiff is not entitled to a declaration of non-liability where the defendant has neither asserted a contrary right nor made nor formulated an adverse claim. It is oppressive and unjust to subject a defendant to legal proceedings where he has . .
CitedRussian Commercial and Industrial Bank v British Bank of Foreign Trade HL 1921
The court considered how the court should exercise any jurisdiction to make declarations.
Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the . .
CitedStephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
CitedLever Faberge Ltd v Colgate Palmolive 2005
In intellectual property cases, the court might be ready to grant a declaration without undertaking the full enquiry which would precede a declaration in other areas of law. . .
CitedGuild v Eskander Ltd 2003
. .
CitedFinancial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .
CitedStoddard International Plc v William Lomas Carpets Ltd ChD 14-Feb-2001
The need for a defendant, accused of copying, to overcome the obstacle created by the similarity of his work with that of the claimant’s, did not remove entirely the claimant’s own obligation to prove his case. As the degree of similarity increased, . .
CitedL’Oreal (UK) Limited and Another v Johnson and Johnson and Another ChD 7-Mar-2000
The claimant appealed against an order striking out their threat action for trade mark infringement, in respect of the words ‘No Tears’ when used for children’s shampoo.
Held: The court had to consider both the letter and the surrounding . .
CitedMessier-Dowty Ltd and Another v Sabena Sa and others ComC 3-Dec-1999
Application by 2 and 3 defendants for an order suspending proceedings in England pending production and consideration of expert report. Whether, pursuant to Supreme Court Act 1981 s. 49(3) and CPR 3.1(2)(f), there were ‘compelling circumstances’ . .
CitedPlastus Kreativ AB v Minnesota Mining and Manufacturing Co 1995
English law regards the rules for obtaining negative declaratory relief as being procedural
Aldous J said: ‘For myself I would not welcome the task of having to decide whether a person had infringed a foreign patent. Although patent actions . .
CitedPatten v Burke Publishing Ltd ChD 1991
The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract.
Held: The guiding principle which determines how the discretion is to be exercised . .
CitedFilhol Ltd v Fairfax (Dental Equipment) Ltd 1990
The defendant had lost an action on the design of dental pins used to create foundations for false teeth. He wanted to get onto the market with a product which was designed so as to avoid the construction of the patent claims found by both the High . .
CitedLeco Investments (UK) Ltd v Land Pyrometers CA 1982
The defendant appealed against a striking out of his defence on a claim for copyright infringement.
Held: The appeal succeeded. Leave should have been given. Whether copying was substantial depended in part on quality, which was a matter of . .
CitedMetzger v Department of Social Security 1977
A court’s declaration should constitute only what it has found after proper argument. . .
CitedWallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
CitedAmstrad Consumer Electronics Plc v British Phonographic Industry Limited CA 29-Oct-1985
Amstrad sought a declaration that their retailing of equipment with two cassette decks was not unlawful. A declaration was not granted because Amstrad might be guilty of a criminal offence. However in the absence of any evidence that Amstrad was . .
CitedMessier-Dowty Ltd and Another v Sabena Sa and Others CA 21-Feb-2000
The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court . .
CitedWyko Group Plc and Others v Cooper Roller Bearings Co Ltd ChD 4-Dec-1995
A court may not grant a declaratory relief anticipating facts which were not yet in being. There must be in existence of a real question in issue between the parties as to the legal consequences of existing facts. Declaratory relief could not be . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.237599

Amec Process and Energy Ltd v Stork Engineers and Contractors Bv (A Company Registered In the Netherlands) (No 3): 15 Mar 2002

Unreported, 15 March 2002
England and Wales
Cited by:
CitedSisu Capital Fund Ltd and others v Tucker and others 28-Oct-2005
The Defendants were accountants who had been sued through their partnership in KPMG. They had been granted a order for their costs. They sought payment for the time they had spent prersonally in preparing their defences.
Held: As professionals . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.234457

Adoko v Office for the Supervision of Solicitors: Admn 15 Jul 2003

The applicant had been made subject of an order preventing his employment as a clerk by any firm of solicitors. A costs order accompanied that order. The order was later the subject of a default costs certificate. He sought to appeal that certificate.
Held: The correct and only way to challenge such an order was application under CPR47.12. In any event there was required to be shown evidence demonstrating ‘a good reason why detailed assessment proceedings should continue’ (CPR47.12(2)). No such reason was adduced. An appeal was not a possible route of challenge. Appeal dismissed.
Lord Justice Dyson, Mr Justice Gibbs
[2003] EWHC 1899 (Admin)
Bailii
Civil Procedure Rules 47.12
England and Wales

Updated: 21 May 2021; Ref: scu.185810

James Gilbert Ltd v MGN Ltd: 2000

The test to be applied to the question of summary disposal under s.8 of the 1996 Act is the same as that under CPR Part 24.
Early J
[2000] EMLR 681
Defamation Act 1996 8, Civil Procedure Rules 24
England and Wales
Cited by:
CitedDowntex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .

These lists may be incomplete.
Updated: 20 May 2021; Ref: scu.186630

USF Ltd v Aqua Technology Hanson NV/SA: 30 Jan 2001

Extension of time to challenge jurisdiction of the court.
Unreported, 30 January 2001
England and Wales
Cited by:
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.237259

ABCI v Banque Franco-Tunisienne and others: CA 27 Feb 2003

‘The thinking behind the CPR was that they would speak for themselves and that courts would not have to refer to an ever increasing body of authority in order to apply them.’
[2003] EWCA Civ 205, [2003] 2 Lloyd’s Rep 146
Bailii
Civil Procedure Rules 44.3 44.4
England and Wales
Citing:
See AlsoABCI v Banque Franco Tunisienne and others CA 5-Jul-2002
Renewed application for leave to appeal. . .
CitedHandelskwekerij GJ Bier Bv v Mines De Potasse D’Alsace Sa ECJ 30-Nov-1976
Europa Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place . .
Appeal fromABCI v Banque Franco-Tunisienne ComC 28-Aug-2002
. .

Cited by:
CitedSinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages) CA 23-Oct-2003
The ‘Somatra’ was lost at sea. The insurance claim had been refused on the basis that the ship was unseaworthy. The owners came to instruct the appellant solicitors to represent them in the insurance claim. Having lost confidence in the solicitors, . .
CitedCooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.180715

Expandable Ltd and Another v Rubin: CA 11 Feb 2008

The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional privilege, and its mention in a statement did not automatically amount to waiver of that privilege. The rules referred to a document being ‘mentioned’. That was quite general, and did not have to have been written in any particular way or for any purpose to count as mentioned. A litigant has a right to inspect any document mentioned in a witness statement (i.e. one to which there has been a direct allusion or specific reference).
Rix, Jacob LJJ, Forbes J
[2008] EWCA Civ 59, Times 10-Mar-2008, [2008] NPC 16, [2008] BPIR 314, [2008] 1 WLR 1099, [2008] CP Rep 22
Bailii
Civil Procedure Rules 831
England and Wales
Citing:
Appeal fromExpandable Ltd and others v Rubin ChD 24-Jul-2007
The claimants sought disclosure of a letter written by the defendant’s solicitor to his client, saying that it had been referred to in a statement.
Held: They were not entitled to the letter. It was protected by legal privilege, and the . .
CitedDubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .
CitedButtes Gas and Oil Co v Hammer (No 3) CA 1981
The mere reference to a document in the pleadings was not an automatic waiver of any legal professional privilege. . .
CitedDubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .

Cited by:
CitedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
CitedNaschie v Macmillan Publishers Ltd (T/A Nature Publishing Group) and Another QBD 10-Jun-2011
The defendants sought directions to restrict the issues in the forthcoming defamation action.
Held: Orders were considered and made accordingly. . .

These lists may be incomplete.
Updated: 11 May 2021; Ref: scu.264414

Ali Reza-Delta Transport Co Ltd v United Arab Shipping Co Sag: CA 17 Jun 2003

The case had concluded. Offers of settlement had been made and the operative one included an offer on the interest payable. The court came to decide how the interest part of the offer was to be considered when assessing whether the judgment bettered the offer. It was noted that an offer on costs was to be disregarded, and it was claimed that in contradistinction, an offer relating to interest related to a central part of the matter judged.
Held: The Appellants only offered to accept what they were claiming, and the offer of a concession on the interest uplift was irrelevant. Concessions as to uplift interest should also be left out of account as for costs.
Lord Justice Peter Gibson, Lord Justice Tuckey And Mr. Justice Nelson
[2003] EWCA Civ 811, Times 04-Jul-2003, Gazette 11-Sep-2003, [2003] 2 All ER (Comm) 276, [2004] 1 Costs LR 18, [2003] CP Rep 57, [2003] 2 Lloyd’s Rep 455, [2003] 3 All ER 1297, [2004] 1 WLR 168
Bailii
Civil Procedure Rules 36.21
England and Wales
Citing:
CitedMitchell and Others v James and Others CA 12-Jul-2002
The defendant had made an offer including an offer that each party bear their own costs. A later action led to an order on better terms, and the claimant sought costs on an indemnity basis.
Held: The rules were generally incompatible with . .
CitedLiesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
CitedKiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.183638

Clark v Perkes: 2000

The court gave guidance on the practice and procedure on second appeals.
[2000] All ER 1
Civil Procedure Rules 52.2(3) 52.4.8
England and Wales
Cited by:
CitedMarkos v Goodfellow and Barke and Barke CA 26-Jul-2001
There was a boundary dispute. The judge in the County Court had made an error. Counsel had offered to apply to amend the order under the slip rule, and therefore the judge had refused leave to appeal.
Held: This was an application for leave to . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.224966

Knowsley Housing Trust v Revell; Helena Housing Ltd v Curtis: CA 9 Apr 2003

The local authority landlord commenced proceedings for possession, but then transferred the properties to a registered social landlord. The tenants objected that the new landlords could not continue the proceedings.
Held: The transfer moved tenants from the secure tenancy regime to the assured tenancy regime, with different notices and procedures. The notices were not significantly different. The court laid out a procedure to be followed which would allow substitution of the new landlord.
Lord Justice Peter Gibson Lord Justice Waller And Lord Justice Jonathan Parker
[2003] EWCA Civ 496, Times 17-Apr-2003, Gazette 19-Jun-2003
Civil Procedure Rules
England and Wales
Citing:
CitedKelsey Housing Association Ltd v King and Another CA 8-Aug-1995
The Court dismissed an appeal from a decision to dispense with notice under the section. A notice to quit had been served and a summons for possession issued with an appendix containing details of the allegations of breach of the tenancy agreement . .
CitedManchester City Council v Finn CA 2002
The court was concerned with the ‘secure’ tenancy regime and the proper approach to the 1985 Act. The court took a ‘purposive approach’ in considering whether to allow the making of an amendment to a conditional possession order on the basis of new . .
MentionedMountain v Hastings CA 16-Apr-1993
The tenant disputed the effect of a notice to quit. Paragraph 3 of the form read: ‘The landlord intends to seek possession on grounds . . in Schedule 2 to the Housing Act 1988, which reads: Give the full text of each ground which is being relied on. . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.181310

Harvey Shopfitters Ltd v ADI Ltd: CA 13 Nov 2003

The court dismissed the claimants appeal, but discussed the need now for the parties to file core bundles at least one week before the hearing. Additional agreed bundles of authorities should have the appropriate passages clearly marked and filed within the same time scale. Failures to abide by these requirements will be dealt great disfavour.
Dame E Butler Sloss, President, Brooke, Latham LJJ
[2003] EWCA Civ 1757, Times 26-Nov-2003, Gazette 02-Jan-2004
Bailii
Civil Procedure Rules 5.6 5.7 5.8
England and Wales
Citing:
CitedHaggis v Director of Public Prosecutions Admn 7-Oct-2003
. .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.188480

Lucas v Barking, Havering and Redbridge Hospitals NHS Trust: CA 23 Jul 2003

The claimant appealed an order requiring him to disclose to the defendants the terms of the instructions given to the expert witness.
Held: Rule 35.10(4) restriction applied to prevent the defendant from obtaining an order for the inspection he sought.
Waller, Mantell, Laws LJJ
[2003] EWCA Civ 1102, Times 28-Aug-2003, Gazette 02-Oct-2003, [2004] 1 WLR 220
Bailii
Civil Procedure Rules 31.14(2) 35.10(4)
England and Wales
Citing:
DoubtedMorris v Bank of India ChD 15-Jan-2001
The court applied a wide interpretation of the word ‘instructions’ where the Rules exempted such instruction to experts preparing a report. . .
PreferredTaylor v Bolton Heath Health Authority QBD 14-Jan-2000
The court construed narrowly the term ‘instructions’ within the rules where they exempted document forming part of the instructions to an expert to prepare a report for the litigation from disclosure. The word meant ‘what an expert was told to do’. . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.185303

DK, KR, CGE, DHM, PS, RM, DJ, GOM v Bryn Alyn Community (Holdings) Ltd (In Liquidation) and Royal and Sun Alliance PLC: CA 22 May 2003

Lord Justice Auld, Lord Justice Waller And Lord Justice Mantell
[2003] EWCA Civ 782
Bailii
Civil Procedure Rules 36
England and Wales
Citing:
See AlsoKR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 12-Feb-2003
kr_bryn2CA2003
The respondent appealed decisions by the court to allow claims for personal injury out of time. The claims involved cases of sexual abuse inflicted by its employees going back over many years.
Held: The judge had misapplied the test laid down . .
See AlsoRowlands and others v Bryn Alyn Community (Holdings) Ltd and Royal and Sun Alliance Plc CA 24-Mar-2003
. .

Cited by:
See AlsoKR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 10-Jun-2003
The court considered an extension of the time for claiming damages for personal injuries after the claimants said they had been sexually abused as children in the care of the defendants.
Held: The test to be applied under section 14(2) was . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.183840

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 reluctant to create rules which would deny the admission of genuine evidence. Where a party behaved in a reprehensible manner, the court should look to other methods of marking the unlawful behaviour, including costs awards, but the court was required to get to the truth. A party’s behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded. Any infringement under article 8.1 was justified under article 8.2.
Woolf LCJ, Hale, Latham LJJ
Times 07-Feb-2003, [2003] EWCA Civ 151, Gazette 20-Mar-2003, [2003] 1 WLR 954
Bailii
Civil Procedure Rules 32.1(2), European Convention on Human Rights 8.1 8.2
England and Wales
Citing:
CitedSally Rall v Ross Hume CA 8-Feb-2001
A surveillance film of a claimant was a document within the rules. The rules make no specific provision for the admission of such material for the purposes of cross examination of a claimant. A party proposing to use such material was under all the . .
ModifiedRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
ModifiedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
ModifiedKuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .

Cited by:
CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedAmwell 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, . .
CitedL 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 . .
CitedWhite 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 . .
CitedDouglas v O’ Neill QBD 9-Feb-2011
The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
Held: The defendant’s application succeeded. There had been no breach of . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.179000

Crosbie v Munroe, Motor Insurer’s Bureau: CA 14 Mar 2003

The claim had been settled before action, and costs only proceedings had been instigated. He appealed a decision as to the award of costs in that case. The question was whether the phrase ‘the proceedings which gave rise to the assessment proceedings’ referred to the only actual proceedings, the costs claim, or to the settled claim.
Held: CPR 47.19 does not contain any simple mechanism for deciding how the costs of the assessment proceedings should fall if the offer is accepted or refused (when with hindsight it should have been accepted). 44.12A had been introduced to deal with costs only cases. Until the time the substantive claim is settled, the ‘proceedings’ relate to liability and the amount of any compensation. After the substantive claim is settled, the ‘proceedings’ relate to the assessment of the costs the paying party has to pay.
Lord Justice Schiemann, Lord Justice Brooke and Lord Justice Jonathan Parker
[2003] EWCA Civ 350, Times 25-Mar-2003, Gazette 22-May-2003, [2003] RTR 33, [2003] CP Rep 43, [2003] 1 WLR 2033, [2003] 2 All ER 856, [2003] 3 Costs LR 377
Bailii
Civil Procedure Rules 44.12A
England and Wales
Citing:
CitedCallery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.179776

Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others (No 2): ChD 30 Mar 2000

The new Civil Procedure Rules had not substantially affected the rules on costs following the event of a trial. The discretion in a judge as to the order for costs had been correctly stated in Elgindata, and approved in Phonographic Performance Ltd v AEI Rediffusion Music Ltd.
Times 30-Mar-2000
England and Wales
Citing:
See AlsoGwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
See AlsoGwembe Valley Development Company Ltd v Koshy and Another CA 25-Jul-2001
Application to amend order under slip rule. . .

Cited by:
CitedAmber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
See AlsoGwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
See AlsoGwembe Valley Development Company Ltd v Koshy and Another CA 25-Jul-2001
Application to amend order under slip rule. . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.81097

Regina (Smith, Trevor) v Parole Board: CA 30 Jun 2003

The applicant had been granted leave to present a petition for judicial review, but on certain grounds only. On the hearing, he sought again to present the case including the grounds upon which permission had not been granted.
Held: The judge who heard the substantive application could hear an application based additionally upon grounds rejecetd by the judge giving leave, even if neither the legal nor factual situation had changed, and Opoku should be read accordingly. Each case must be looked at on its own merits. .
Woolf LCJ, Auld, Clarke LJJ
Times 09-Jul-2003, [2003] EWCA Civ 1014, [2003] 1 WLR 2176
Bailii
Civil Procedure Rules 54.15
England and Wales
Citing:
ExplainedOpoku, Regina (on the Application of) v Principal of Southwark College and Another Admn 17-Oct-2002
The claimant sought permission to add grounds to his application for leave to bring a judicial review.
Held: There was no specific rule excluding a court from granting such a rule. Here however there was no change to support any such . .

Cited by:
RevisitedRegina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.184485

P and O Nedlloyd BV Aktieselskabet Dampskibsselskabet Svendborg v Utaniko Limited/East West Corporation (No 2): CA 19 Feb 2003

The claimants had made a Part 36 offer at first instance, but the matter was appealed. Having won at appeal they sought their costs on an indemnity basis of the appeal also.
Held: If a party wished to protect itself by a Part 36 offer, it must be made both at first instance, and again before the appeal.
Lord Justice Laws, Lord Justice Brooke, Lord Justice Mance
Times 21-Feb-2003, [2003] EWCA Civ 174, Gazette 10-Apr-2003, [2003] 1 Lloyd’s Rep 265, [2003] 4 Costs LR 531, [2003] CPLR 319
Bailii
Civil Procedure Rules 36
England and Wales
Cited by:
CitedCel Group Ltd v Nedlloyd Lines UK Ltd and Another CA 18-Dec-2003
The defendant sought indemnity costs with interest at an enhanced rate. It had made on offer of settlement which was rejected. CEL objected that the defendant had the benefit of a conditional fee agreement.
Held: The conditional fee agreement . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.179488

Leigh v Michelin Tyre Plc: CA 8 Dec 2003

The parties had submitted costs estimates which proved later to be quite inadequate.
Held: It was a central principle of the Civil Procedure Rules that costs should be controlled. Solicitors should file costs estimates not only at the allocation questionnaire stage but also at the listing questionnaire. The practice direction was framed in mandatory terms. The court gave guidance as to how costs estimates might be taken into account when making an order for costs. The costs estimates given were a useful yardstick of the reasonableness of the costs claimed. Any substantial difference should be explained, and the absence of an explanation could also indicate unreasonableness. A reliance upon an opponent’s low estimate in not offering a settlement was relevant, as also it would be if the case management would have been different.
Lord Phillips Master Of The Rolls Lady Justice Arden Lord Justice Dyson
[2003] EWCA Civ 1766, Times 16-Dec-2003, [2004] 1 WLR 846, [2004] 1 Costs LR 148, [2004] 2 All ER 175, [2004] CP Rep 20
Bailii
Civil Procedure Rules 43PD 6.6
England and Wales
Cited by:
CitedGarbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
CitedReynolds v Stone Rowe Brewer (A Firm) QBD 18-Mar-2008
The solicitors appealed against the assessment of their costs. The judge had found that they had estimated their costs and applied a 15% margin of error.
Held: the judge should have given reasons for his judgment to allow the parties to assess . .

These lists may be incomplete.
Updated: 02 May 2021; Ref: scu.188642

Blackham v Entrepose UK: CA 27 Jul 2004

The claimant had succeeded in his claim for damages for personal injuries, but there had been a payment in. There were cross appeals, as to the proportion of costs awarded, and by the defendant saying that the interest awarded should have been added to award before testing whether the payment had been beaten.
Held: The court should first examine what the payment in was expressed to represent and then consider whether the amount for which he has directed judgment to be entered, as compared with that payment, is less than that amount. Had the court done so, the award would not have bettered the payment in, and the costs award would be different. Appeal allowed. Cross appeal dismissed.
[2004] EWCA Civ 1109, [2005] CP Rep 7, Times 28-Sep-2004, [2005] 1 Costs LR 68
Bailii
Civil Procedure Rules 36.20
England and Wales

Updated: 02 May 2021; Ref: scu.200343

A and Another v Somerset County Council: QBD 11 Oct 2012

Appeal against refusal of order for pre-action disclosure.
Eady J
[2012] EWHC 2753 (QB)
Bailii
Civil Procedure Rules 31.16
Citing:
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedBlack v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
CitedRose v Lynx Express Ltd. and Bridgepoint Capital (Nominees) Ltd CA 7-Apr-2004
In an request for pre-action discovery it was plainly wrong for the court to seek to decide in advance any element of the virtues of the case.
Held: The appeal should be allowed. The case was arguable and should be allowed to proceed.
CitedAD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .

These lists may be incomplete.
Updated: 20 April 2021; Ref: scu.464821

ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust: CA 25 Jul 2003

The claimant sought damages alleging that she had been injured by the defendants’ negligence in conducting her birth. The parties sought determination of whether the court should restrict the number of expert witnesses.
Held: Nothing in the rules set a specific limit of one such witness. Where the question was substantial and complex, the overriding objective required the court to keep a balance between the parties. Inevitably the defence would include evidence from the doctors themselves, and the claimant was not to be limited too strictly.
[2003] EWCA Civ 1284, Gazette 02-Oct-2003
Bailii
Civil Procedure Rules 35.1
England and Wales

Updated: 20 April 2021; Ref: scu.186539

CIBC Mellon Trust Company and others v Mora Hotel Corp Nv and Another: CA 19 Nov 2002

A party had been ordered to pay into court as a condition of an application to set aside a judgment, a substantial sum in respect of past costs, and also as security for costs to be incurred. The defendant appealed.
Held: The judge had not differentiated between the two. On an application for security for costs, a court could look to the resources which might be available to the party. That might also be relevant when ordering payment of past costs, but the considerations differed. In this case there was no absence of good faith as in Oury. The order was also wrong in being, in reality, directed against a third party against whom no costs order could properly be made. The element relating to security for future costs stood.
Peter Gibson, Mance, Hale, LJJ
Times 28-Nov-2002, Gazette 23-Jan-2003, [2002] EWCA Civ 1688, [2003] 1 All ER 564
Bailii
Civil Procedure Rules 3.1(2)(f) 3.1(3)(a) 3.1(5)
England and Wales
Citing:
CitedOlakunle O Olatawura v Alexander O Abiloye CA 17-Jul-2002
The claimant challenged an order requiring him to give security for costs before proceeding. The judge had felt he was unreasonable in the way he was pursuing his claim. He appealed saying the order was made outside the scope of Part 25.
Held: . .
CitedReed and others v Oury and others ChD 14-Mar-2002
The court should only exercise its power under the Civil Procedure Rules Part 3 to require a payment in only in limited circumstances, and not do so unless the party against whom the order was sought had acted in bad faith. . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.188954

Scammell and Others v Dicker: CA 21 Dec 2000

A part 36 offer can be withdrawn at any time before it is accepted or expires. The rules can not force an offer to be left open. Clear words would have been required within the rules to impose such an obligation. The actual words referred to offers ‘expressed’ to be open for 21 days, but the intention was to create an ‘unless’ condition not a positive obligation. Such offers are subject to the general rules of contract, including offer and acceptance and the rules merely provide an advantage to the parties in dealing with each other. A court will strive to give effect to agreements, unless not intended to create legal relations, particularly when the agreement is a compromise of an existing dispute and when it has been acted on.
Lord Justice Aldous And Lord Justice Mance
Gazette 15-Feb-2001, Times 14-Feb-2001, [2000] EWCA Civ 352, [2001] CP Rep 64, [2001] CPLR 188, [2001] 1 WLR 631
Bailii
Civil Procedure Rules Part 36
England and Wales
Citing:
See AlsoScammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appeal fromMamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .

Cited by:
CitedFlynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
See AlsoScammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appealed toMamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .
CitedHalpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.147385

Regina on the Application of Pharis v Secretary of State for the Home Department: CA 25 May 2004

The claimant appealed refusal of judicial review of the respondent’s decision to remove him to Nigeria.
Held: The appeal was refused. The court said that in future the lodging of a notice of appeal should automatically stay any process of removal pending the appeal. This informal practice had been subject of considerable abuse, with spurious appeals.
Lord Justice Laws Lord Justice Tuckey Lord Justice Brooke
[2004] EWCA Civ 654, Times 27-May-2004, [2004] 1 WLR 2590, [2004] 3 All ER 310
Bailii
Immigration (Removal Directions) Regulations 2000 4(1), Civil Procedure Rules, Nationality Immigration and Asylum Act 2002
England and Wales

Updated: 11 April 2021; Ref: scu.197951

Lord Ashcroft v Attorney General and Department for International Development: QBD 31 May 2002

The claimant was the subject of confidential reports prepared by the defendants which were leaked to newspapers causing him damage. He sought leave to amend his claim to add claims for breach of the Data Protection Act and for public misfeasance. Under the Civil Procedure Rules a new claim should be allowed if it is arguable. It was claimed that the failure to investigate the leak by the public authority itself amounted to an infringement of the claimant’s human rights. However an investigation into the investigation of the source of the leak would be an improper diversion of the case. A case of misfeasance required the clearest of proof. There was none against the third named defendant, and the associated claim would not be allowed. Lateness is not to be a ground for refusing a claim for aggravated damages. Derogatory statements by third parties could not be relied upon to found a claim for aggravated damages.
DPA 1998 s4(4) creates free-standing duty on data processors to comply with principles in Sch 1 Part I. Commissioner enforces compliance with principles, but his jurisdiction is non-exclusive so far as claims for damages by data subjects are concerned
Gray J held it arguable that ostensibly innocent words might convey a secondary, inferential meaning which embodied sensitive personal data about an individual to the effect that he was involved in money laundering.
The Hon Mr Justice Gray
[2002] EWHC 1122 (QB)
Bailii
Data Protection Act 1984, Data Protection Act 1998 4(4), Civil Procedure Rules 17.3.5
England and Wales
Citing:
CitedX (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
CitedThree 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:
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.172269

Day Morris Associates v Voyce and Another: CA 26 Feb 2003

The claimant estate agents appealed dismissal of their claim for commission. The owners were splitting up, and there was to begin with no clear instruction to market the property. Later the property was sold privately, but to a buyer introduced by the claimant to Mrs Voyce. The agent asked the court to go beyond its normal appellate function to remedy a defect in the trial in that the judge had relied upon a point unargued by the parties, as to whether Mrs Voyce had accepted the offer to act.
Held: The parties wre given some latitude in the scope of their arguments. The judge had not clearly identified the contractual history. A contractual acceptance has to be a final and unqualified expression of assent to the terms of the offer. Here Mrs Voyce’s behaviour had been enough to constitute such acceptance. Appeal allowed.
Lord Justice Sedley Mrs Justice Black
[2003] EWCA Civ 189
Bailii
Civil Procedure Rules 52.11(3)(b)
England and Wales

Updated: 07 April 2021; Ref: scu.179568

Bell Electric Ltd v Aweco Appliance Systems Gmbh and Co Kg (1501): CA 31 Oct 2002

The respondent sought to appeal. The claimant requested the court to order that as a pre-condition of being allowed to appeal, the respondent should pay into court, or give adequate security for, the costs awarded at first instance, even though there was no evidence that a vigorously followed enforcement would not succeed if the appeal failed.
Held: There was no reason in principle to say the court had no jurisdiction to make such an order in appropriate circumstances, such as the respondent being already in breach, the refusal of a stay, or that the failure to pay was based upon a cynical taking advantage of court rules.
Potter, Carnwath LJJ
Times 20-Nov-2002, [2002] EWCA Civ 1501, [2003] 1 All ER 344
Bailii
Civil Procedure Rules 52.9
England and Wales
Citing:
See AlsoBell Electric Ltd v Aweco Appliance Systems Gmbh and Co Kg (1589) CA 31-Oct-2002
. .

These lists may be incomplete.
Updated: 06 April 2021; Ref: scu.178085

Westbrook Dolphin Square Ltd v Friends Life Ltd: CA 18 May 2012

W appealed against the striking out as an abuse of its request for a declaration that the tenants of the flats at Dolphin Square were entitled to acquire its freehold from the respondents. They had previously served and withdrawn a notice claiming the right.
Held: The tenants’ appeal was allowed. CPR 38.7 did not operate to restrict the right gfiven by the 1993 Act to make a second claim after a period of one year had expired from the withdrawal of the first. The statutory right to serve successive notices necessarily carried with it the right to make successive applications to the court.
Lord Neuberger MR, Longmore. Lewison LJJ
[2012] EWCA Civ 666, [2012] HLR 38, [2012] WLR(D) 151, [2012] 2 EGLR 76, [2012] LandTR 36, [2012] 1 WLR 2752, [2012] 4 All ER 148, [2012] CP Rep 33, [2012] 32 EG 42, 2012] 2 PandCR 8
Bailii, WLRD
Leasehold Reform, Housing and Development Act 1993 22 823, Civil Procedure Rules 38.7
England and Wales
Citing:
Appeal fromWestbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd ChD 14-Sep-2011
The defendant sought to have the claim struck out as an abuse of process, saying that it was a repeat of a claim previously made and withdrawn.
Held: The application succeeded. . .

These lists may be incomplete.
Updated: 05 April 2021; Ref: scu.457822

PHI Group Ltd v Robert West Consulting Ltd: CA 10 May 2012

The court considered the application of rule 36, and the general rules as to costs, in relation to contribution proceedings between two parties both liable to a claimant for the same damage.
Rix, Lloyd, Stanley Burnton LJJ
[2012] EWCA Civ 588
Bailii
Civil Procedure Rules 36
England and Wales

Updated: 04 April 2021; Ref: scu.457605

Blackland Park Exploration Ltd v Environment Agency: CA 15 Dec 2003

The landowner disposed of liquid waste into oil bearing strata via a deep borehole. At that depth, it would not mix with what was being extracted elsewhere.
Held: The judge had been correct to refuse a declaration as to the lawfulness.
Simon Brown, Mummery, Scott Baker LJJ
Times 02-Jan-2004, [2003] EWCA Civ 1795
Bailii
Landfill (England and Wales) Regulations 2002 (2002 No 1559) 3(2) 9, Civil Procedure Rules 40.20
England and Wales
Citing:
CitedRegina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .

These lists may be incomplete.
Updated: 02 April 2021; Ref: scu.190153

Dockerill and Another v Tullett: CA 24 Feb 2012

In all three claims, children sought to recover the costs of applications to approve compromises of their claims for damages for personal injuries received. In particular the court was asked whether they were entitled only to fixed costs, or were subject to detailed assessment.
[2012] EWCA Civ 184
Bailii
Civil Procedure Rules 21.10(2)
England and Wales

Updated: 23 March 2021; Ref: scu.451493

Barrett v Universal-Island Records Ltd and Another: ChD 28 Mar 2003

The claimants sought unpaid royalties. The defendants sought to have the claim struck out as an abuse of process.
Held: Such interlocutory applications alleging abuse of process should now be dealt with on the same footing as other applications for summary relief. The court had to be able to say with a high degree of confidence and on summary investigation that the claim of abuse was made out and would succeed. It was not proper to allow such investigations to turn into a mini-trial. This case did have unresolved issues and had to be allowed to go to trial.
Laddie J
Times 24-Apr-2003, Gazette 05-Jun-2003, [2003] EWHC 625 (Ch)
Bailii
England and Wales
Cited by:
See AlsoBarrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .

These lists may be incomplete.
Updated: 22 March 2021; Ref: scu.181843

University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others: ChD 14 Dec 2004

The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to have been able to establish whether it was proper to resist the application had survived the introduction of the Civil Procedure Rules (44.3(2)(b)). The circumstances justifying the rule were still applicable. It was reasonable also for the defendants to have had separate representation, and each was entitled to the appropriate costs. There had been a potential conflict of interest.
Lightman J
[2004] EWHC 2908 (Ch), Times 03-Jan-2005, [2005] 2 WLR 1334, [2005] 3 All ER 416, [2005] 2 Costs LR 287
Bailii
Law of Property Act 1925 84(20, Civil Procedure Rules 44.3(2)(b)
England and Wales
Citing:
See AlsoUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
CitedRe Jeffkins Indentures 1965
‘a plaintiff seeking a declaration that restrictive covenants do not affect his property is expected to pay his own costs. He is also expected to pay the costs of any defendants who enter an appearance down to the point in proceedings at which they . .
CitedRe Wembley Park Estate Co Ltd’s Transfer 1968
The court confirmed the rule in Jeffkins and added that ‘the costs payable to the defendant should be paid on the common fund basis ‘since the obtaining of the order is something in the nature of a luxury to the plaintiff for which he ought to pay.’ . .
Not FollowedJ Sainsbury plc v Enfield London Borough Council 1989
Morritt J first asked from what fact or facts might it be inferred that the intention in a conveyance was that restrictive covenants should enure for the benefit of the retained land, and recorded the contentions of the parties as follows: ‘On the . .
CitedAEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .

Cited by:
See AlsoUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .

These lists may be incomplete.
Updated: 21 March 2021; Ref: scu.220291

CTB v News Group Newspapers Ltd and Another: QBD 25 Nov 2011

The second defendant sought permission to read a statement in open court. In the claim, the claimant sought an injunction to restrain the first defendant from seeking to publish details of an extra marital affair with the second defendant. In the course of several hearings, statements had been made about her, and she wished to correct them.
Eady J
[2011] EWHC 3099 (QB)
Bailii
Civil Procedure Rules 53

Updated: 21 March 2021; Ref: scu.450074

Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation: HL 12 Jun 2003

The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating by attachment against the property of the judgment debtor. The property so attached is the chose in action represented by the debt of the third party to the judgment debtor. On the making of the interim order that chose in action is bound, frozen, attached or charged in the hands of the third party. Subject to any monetary limit which may be specified in the order, the third party is not entitled to deal with that chose in action by making payment to the judgment debtor or any other party at his request. When a final or absolute order is made the third party is obliged (subject to any specified monetary limit) to make payment to the judgment creditor and not to the judgment debtor, but the debt of the third party to the judgment debtor is discharged pro tanto. That discharge is central to the jurisdiction, and an order cannot be made where a discharge is not obtained.
Lord Hoffmann said: ‘it is a general principle of international law that one sovereign state should not trespass upon the authority of another, by attempting to seize assets situated within the jurisdiction of the foreign state or compelling its citizens to do acts within its boundaries.’
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett
Times 13-Jun-2003, [2003] UKHL 30, Gazette 17-Jul-2003, [2003] 3 WLR 21, [2003] 3 All ER 465, [2003] 2 Lloyd’s Rep 405, [2003] ILPr 36, [2003] 2 All ER (Comm) 65, [2004] 1 AC 260, [2003] 1 CLC 1163, [2003] 2 LLR 405
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982, Civil Procedure Rules 72
England and Wales
Citing:
CitedRe General Horticultural Company, Ex parte Whitehouse ChD 1886
Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the . .
CitedRogers v Whiteley HL 1892
Discussing an order attaching all debts, the House held: The effect of an order attaching ‘all debts’ owing or accruing due by [the garnishee] to the judgment debtor is to make the garnishee custodier for the Court of the whole funds attached; and . .
CitedChoice Investments Ltd v Jeromnimon CA 1981
‘[Service of the order nisi] prevents the bank from paying the money to its customer until the garnishee order is made absolute, or is discharged . . . The money at the bank is then said to be ‘attached’. . . . But the ‘attachment’ is not an order . .
CitedGalbraith v Grimshaw and Baxter CA 1910
A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to . .
CitedJoachimson v Swiss Bank Corporation CA 1921
The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
CitedEllis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
CitedMartin v Nadel CA 1906
A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank.
Held: A garnishee order is of the nature of an execution, and is governed by . .
CitedDeutsche Schachtbauund Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd HL 1990
The case concerned a garnishee order absolute made in respect of a debt situated in England, and the House was not called upon to consider the position where foreign debts were in issue.
Held: (Majority) The court has a ‘discretionary power to . .
CitedZoneheath Association Ltd v China Tianjin International European Community Economic and Tech Co-Op Corporation QBD 8-Apr-1994
A garnishee order was not available against a foreign account through a UK branch. The English court continued to exercise its discretion against the making of orders in relation to debts with a foreign situs . .
Approved in partRegina v Grossman CA 1981
An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
Held: The Civil Division of the Court of Appeal which determined the application was later held to have . .
CitedBonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
CitedMacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office.
Held: The court pointed out the distinction between ‘personal . .
CitedBabanaft International Co SA v Bassatne CA 30-Jun-1988
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute.
Held: There was nothing to preclude English courts from granting . .
CitedBaltic Shipping Co v Translink Shipping Ltd 1995
Further protection was afforded to those holding overseas assets of persons subject to Mareva injunctions. . .
CitedRichardson v Richardson KBD 1927
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the . .
CitedSCF Finance Co Ltd v Masri (No 3) 1987
The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
CitedRasu Maritima v Pertamina CA 1978
Foreign attachment as an interlocutory process is the origin of the Mareva injunction . .
CitedMayor etc of London v Cox HL 1867
The procedure called foreign attachment, on which the procedure under the 1854 Act was modelled, had existed by immemorial custom in London and other cities. The custom had been certified by the Recorder of London in 1481 but went back much further; . .
See AlsoSociete Eram Shipping Company Ltd v Compagnie Internationale De Navigation and others ComC 23-Jan-2001
. .
See AlsoSociete Eram Shipping Co Ltd v Compagnie Internationale De Navigation and others CA 6-Apr-2001
. .

Cited by:
CitedKuwait Oil Tanker Company SAK and others v UBS AG, Qabazard HL 12-Jun-2003
Mr Qabazard conspired with others to defraud the Kuwait Oil Tanker Company SAK and Sitka Shipping Inc of large sums of money. On 16 November 1998 Moore-Bick J gave judgment against him for over US$130m. Historically sums had been placed with the . .
CitedBAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
CitedFG Hemisphere Associates LLC v Republic of Congo QBD 9-Dec-2005
The claimant judgment creditor sought a third party payment order. An interim third party payment order had already been obtained byanother party. The claimant sought payment pari passu.
Held: The other party had priority once their interim . .
CitedMasri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
CitedPerry and Others v Serious Organised Crime Agency SC 25-Jul-2012
The first appellant had been convicted of substantial frauds in Israel. He appealed against world wide asset freezing (PFO) and disclosure (DO) orders made against him. Neither the appellant, nor his offences were connected with the UK. A bank . .
CitedTaurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .

These lists may be incomplete.
Updated: 20 March 2021; Ref: scu.183382

Serious Organised Crime Agency v Namli and Another: CA 29 Nov 2011

An application was made to vary a disclosure order. The application raised a question as to the scope of CPR Part 33.6 and the relationship between that provision, Part 31.5(2) and Part 31.19, and the exercise of the powers conferred on the Court by Part 31.5(2) and Part 31.19.
Held: CPR 31.5(2) empowers the court to limit standard disclosure and that power may be exercised at or after the time that disclosure is ordered, having regard to the overriding objective, including the saving of expense and the need to not involve unnecessary court resources.
Carnwath, Stanley Burn ton LLJ, Sir Robin Jacob
[2011] EWCA Civ 1411
Bailii
Civil Procedure Rules 31.5(2) 31.19
England and Wales
Cited by:
CitedStocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Updated: 19 March 2021; Ref: scu.449034

Dyson Limited v The Registrar of Trade Marks: ChD 15 May 2003

Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given oral evidence, and the Registrar contended that any further appeal to the High court should be by way of review only. The CPR were not excluded, but would provide for a review only.
Held: It was insufficient to characterise the decision as administartive. The appointed officer was accepted not to be an independent tribunal. The decision to be made would involve private rights and the right to a fair trial was engaged. The question was whether the court was obliged to order a rehearing rather than a review whenever an ex parte hearing had taken place. It was for the court to decide whether a rehearing was appropriate. The need to comply with Art 6.1 meant that a rehearing had to be available if needed. In this case a review was adequate. The mark sought had to be used, up to the relevant date, as a trade mark. It is otherwise difficult to see how the feature (a clear bin) could come to be regarded in the minds of the public as a guarantee of origin. On that basis the court would have dismissed the appeal on acquired distinctiveness.
The Honourable Mr Justice Patten
Times 23-May-2003, [2003] EWHC 1062 (Ch), Gazette 17-Jul-2003, [2003] 1 WLR 2406
Bailii
Trade Marks Act 1994 76, Trade Mark Rules 2000 (S.I. 2000 No. 136) 54(1), Civil Procedure Rules 52.11(1), European Convention on Human Rights 6.1
England and Wales
Citing:
CitedDe Cubber v Belgium ECHR 26-Oct-1984
The applicant a Belgian, had been convicted of forgery. He said that the court had not been an impartial tribunal because one of the judges had also acted as an investigating judge in his case. Amongst the grounds on which it was contended that . .
CitedSouth Cone Incorporated v Bessant, Greensmith, House and Stringer (a Partnership) trading as ‘Reef’; REEF Trade Mark ChD 24-Jul-2001
The applicants sought registration of the trade mark ‘Reef’ in connection with merchandising activities in classes 25 and 26 arising from their pop group of the same name. The challengers owned a trade mark ‘Reef Brazil’ in class 25 in relation to . .
CitedBessant and others v South Cone Incorporated; in re REEF Trade Mark CA 28-May-2002
The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was . .
CitedRuna Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
CitedKoninklijke Philips Electronics NV v Remington Consumer Products Ltd ECJ 18-Jun-2002
The claimant developed a three headed rotary razor for men. They obtained registration of the arrangement as a trade mark. They sued the defendant for infringement, and the defendant countered challenging the validity of the registration, saying the . .
CitedWindsurfing Chiemsee Produktions and Vertriebs GmbH v Boots und Segelzubehor Walter Huber and another ECJ 4-May-1999
Registration is to be refused in respect of descriptive marks, ie marks composed exclusively of signs or indications which may serve to designate the characteristics of the categories of goods or services in respect of which registration is applied . .
CitedProcter and Gamble Co v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (‘Baby-Dry’) ECJ 20-Sep-2001
ECJ Appeal – Admissibility – Community trade mark – Regulation (EC) No 40/94 – Absolute ground for refusal to register – Distinctive character – Marks consisting exclusively of descriptive signs or indications – . .
CitedDavid West Trading As Eastenders v Fuller Smith and Turner Plc CA 31-Jan-2003
The appellant sought a declaration of invalidity as regards the defendant’s registered mark ‘ESB’. It was claimed to have come to be used as a general designation of certain kinds of beer.
Held: The Philips decision appeared to supercede the . .

These lists may be incomplete.
Updated: 18 March 2021; Ref: scu.182220