Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department: HL 10 Feb 1983

The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal immigrant.
Held: The term ‘illegal immigrant’ included anyone entering unlawfully. This could include those obtaining leave to enter by deception as well as those entering clandestinely. There is no duty of absolute candour upon someone applying for entry, but silence as to certain important facts might amount to fraud: ‘it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.’
Habeas Corpus is available to all, not just British Nationals. When reviewing the decision of the immigration officer the court should go beyond asking only whether there was evidence on which the officer could have reached his decision, and look also at the sufficiency of that evidence. On a judicial review it was for the administrative authority to prove the facts upon which the decision it had reached had been made. The house was free to not follow its earlier decisions. The decision in Zamir was too narrow.
Lord Scarman said: ‘My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v Bater [1951] P 35 and in Hornal v Neuberger Products Ltd [1957] 1 QB 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue’: Dixon J in Wright v Wright (1948) 77 CLR 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law.’
Lord Bridge said: ‘the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree.’
Lord Wilberforce said: ‘These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle.’
Lord Fraser of Tullybelton observed: ‘in spite of [a] decision . . that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of [the 1971 Act] to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country – section 16(2) – puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed.’

Lord Fraser of Tullybelton, Lord Wilberforce, Lord Scarman, Lord Bridge of Harwich and Lord Templeman
[1983] 2 WLR 321, [1984] 1 AC 74, [1982] UKHL 5, [1983] UKHL 8, [1983] 1 All ER 765, [1982] Imm AR 139
lip, Bailii, Bailii
Immigration Act 1971 33(1)
England and Wales
Citing:
Not followedRegina v Secretary of State for the Home Department, Ex parte Zamir HL 17-Jul-1980
A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise . .
CitedBater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
CitedHornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
CitedIn re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The court asked what was required to displace the presumption that the husband, the older of the two, had . .
CitedWright v Wright 1948
The civil standard of proof is flexible and the court may properly require a higher degree of probability which is appropriate to what is at stake. ‘… the nature and gravity of an issue necessarily determines the manner of attaining reasonable . .
CitedSomerset’s Case, Somerset v Stewart 1772
Habeas Corpus Granted to Slave
Somerset, a slave purchased by the defendant in Virginia, had been brought to England, but then confined on board a ship. He brought a writ for habeas corpus.
Held: The plea in defence was insufficient. Lord Mansfield ordered an African slave . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

Cited by:
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
CitedRegina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
CitedRegina v Secretary of State for Home Department ex parte Dolapo Omolara Martins Admn 29-Nov-1996
The Applicant sought judicial review of the Secretary of State’s decision declaring her to be an illegal entrant. She challenged a finding that at the time of entry she had intended to marry.
Held: It was established that she had not told th . .
CitedRegina v Secretary of State for Home Department ex parte Cengiz Doldur Admn 26-Jun-1997
The applicant sought judicial review of the immigration officer’s finding that he was an illegal immigrant within the section. He had failed to declare that after obtaining temporary permission to enter, he had got married. It was not suggested that . .
CitedSzoma v Secretary of State for the Department of Work and Pensions HL 28-Jul-2005
The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these . .
CitedRegina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedA, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
CitedZN and Another, Regina (on The Application of) v Bromley Youth Court Admn 9-Jul-2014
The applicants, both aged 16, sought permission to bring judicial review of a decision to commit thme for trial at the adult Crown Court on theft charges along with a co-defendant adult (though 18).
Held: Permission was granted.
Hayden J . .
CitedO, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .
CitedKiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
CitedB (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review, Evidence

Leading Case

Updated: 05 December 2021; Ref: scu.178149

Ibrahim v The King: PC 6 Mar 1914

(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by a senior officer, and admitted the act. He appealed on the basis that the admission was not voluntary, having being made to an officer with authority over him, and should not have been admitted.
Held: The committee was not inclined to enunciate a general rule for admissibility of evidence in such circumstances, this is a matter for the Court of Criminal Appeal. It could only say that any defect must be such as to deprive the accused of a fair trial, before a decision could be set aside. The appellate court should ask whether the summing up contains ‘Something which . . deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.’ and
‘It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.’

The Lord Chancellor Lord Moulton, Lord Atkinson Lord Sumner, Lord Shaw, Delivered by Lord Sumner
[1914] UKPC 1, [1914] AC 599, [1914] UKPC 16, [1914-15] All ER Rep 874, (1914) 24 Cox CC 174
Bailii, PC, Bailii
Foreign Jurisdiction Act 1890 4(1)
England and Wales
Citing:
CitedRex v Thornton 1824
. .
CitedRex v Wilde 1835
. .
CitedRex v Kerr 1837
. .
CitedRegina v William Baldry 1852
A police constable, who apprehended a man on a charge of murder, having told him the nature of the charge aganist him, said ‘he need not say any thing to criminate himself – what he did say would he taken down, and used as evidence against him.’ The . .
CitedRegina v Thompson 1893
No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised . .
CitedRegina v Brackenbury 1893
. .
CitedRex v Cheverton 1848
. .
CitedRegina v Pettit 1850
. .
CitedRegina v Berriman 1854
. .
CitedRegina v Reason 1872
. .
CitedRegina v Fennell 1880
. .
CitedRegina v Gavin 1888
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence. . .
CitedRegina v Male 1893
The court rejected a statement made by a prisoner in custody to a constable who had cross-examined him, saying merely that the police have no right to manufacture evidence. . .
CitedRegina v Goddard 1896
The court admitted a statement made by a prisoner in custody to a constable who had cross-examined him. . .
CitedRegina v Histed 1898
The court excluded the answers of a prisoner in custody, on the authority of R. v. Gavin, saying that the constable was entrapping the prisoner and trying by a trick to set a broken-down case on its legs again. . .
CitedRogers v Hawken QBD 1894
(Year unknown) In a case of the admissibility of questions put before arrest, the Divisional Court, (judges not prone to lean against a prisoner)
Held: The statement was admissible and observed that ‘R. v. Male must not be taken as laying down . .
CitedRegina v Best CCA 1909
Referring to the admissibility of answers to questions put before an arrest, ‘it is quite impossible to say that the fact that a question of this kind has been asked invalidates the trial’. . .
CitedRegina v Knight and Thayre 1905
Statements were rejected, because they had been obtained from the accused before arrest by means of a long interrogation by a person in authority over him. The court adverted thus to the case of questions put by a constable after arresting:- ‘when . .
CitedRiel’s Case, ubi supra; ex parte Deeming PC 1892
The Board (PC) has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing. . .
CitedEx parte Macrea PC 1893
The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; nor can it allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even . .
CitedRegina v Booth and Jones 1910
Channell J said: ‘the moment you have decided to charge him and practically got him into custody, then, inasmuch as a judge even cannot ask a question or a magistrate, it is ridiculous to suppose that a policeman can. But there is no actual . .
CitedRex v Dyson CCA 1908
The court adopted the practice for selecting cases for which leave to appeal should be given which was set down in Makin . .
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 . .
CitedRex v Norton 1910
Where the trial judge has warned the jury not to act upon the objectionable evidence, the Court of Criminal Appeal under the similar words of the Act, may refuse to interfere, if it thinks that the jury, giving heed to that warning, would have . .
CitedRex v Fisher 1910
Where objectionable evidence has been left for the consideration of the jury without any warning to disregard it, the Court of Criminal Appeal quashes the conviction, if it thinks that the jury may have been influenced by it, even though without it . .

Cited by:
CitedRegina v Derek William Bentley (Deceased) CACD 30-Jul-1998
The defendant had been convicted of murder in 1952, and hung. A court hearing an appeal after many years must apply laws from different eras to different aspects. The law of the offence (of murder) to be applied was that at the time of the offence. . .
CitedDirector of Public Prosecutions v Ping Lin PC 1976
The Board was asked whether a statement by the defendant was shown to be voluntary.
Held: A trial Judge faced by the problem should approach the task in a common sense way and should ask himself whether the prosecution had proved that the . .
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 . .
CitedRegina v Bass CCA 1953
The court considered how to deal with the admission of a statement where the defendant contested its admissibility. Here the defendant said he had not been cautioned before the interview.
Held: It was within the discretion of the judge to . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedCletus Timothy, Dexter Reid and Sheldon Lewis v The State PC 22-Apr-1999
PC (Trinidad and Tobago) The defendants appealed their convictions for murder. They asserted that the police had extracted confessions by torture, and that other evidence had been obtained by oppression.
CitedRegina v Rennie CACD 1982
In the course of an interrogation, the detective sergeant, after telling the appellant the gist of the information already possessed by the police, said ‘Do me a favour, this was a joint operation by your family to defraud the bank, wasn’t it?’ and . .
ApproveCustoms and Excise Commissioners v Harz and Power; Regina v Harz and Power HL 1967
The rule that a confessional statement is not admissible if it was induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority applies equally where the inducement does not relate to the actual or . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Criminal Practice

Updated: 04 December 2021; Ref: scu.159145

Tchenguiz and Others v Director of The Serious Fraud Office: ComC 11 Apr 2014

Application by the claimants for permission to use certain documents which are said to be subject to public interest immunity and legal professional privilege.

Eder J
[2014] EWHC 1102 (Comm)
Bailii
England and Wales
Cited by:
Appeal fromTchenguiz v Director of The Serious Fraud Office CA 15-Apr-2014
The claimants sought judicial review of the issue of search warrants. . .

Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 02 December 2021; Ref: scu.523701

Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa: SC 5 Dec 2018

The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment covered the entire carriage.
Such beans were commonly carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. In unventilated containers traveling from warmer to cooler climates, they were likely to emit moisture and to prevent moisture damage, it was common to line the containers with an absorbent material such as Kraft paper.
Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (‘less than full container load/full container load’) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them.
Condensation damage was found in 18 out of the 20 containers. The cargo claimed against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to ‘properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried’. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded ‘inherent vice’ on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carrier’s negligence.
The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial
practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners.
The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) ‘inherent vice’ exception?
Held: The appeal succeeded. The legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules.
Held: The appeal succeeded: ‘ the carrier had the legal burden of proving that he took due care to protect the goods from damage, including due care to protect the cargo from damage arising from inherent characteristics such as its hygroscopic character. I would reinstate the deputy judge’s conclusions about the practice of the trade in the lining of unventilated containers for the carriage of bagged coffee and the absence of evidence that the containers were dressed with more than one layer of lining paper. In the absence of evidence about the weight of the paper employed, it must follow that the carrier has failed to prove that the containers were properly dressed.’

Lord Reed, Deputy President, Lord Wilson, Lord Sumption, Lord Hodge, Lord Kitchin
[2018] UKSC 61, [2018] 3 WLR 2087, [2019] 1 All ER (Comm) 397, [2019] 1 Lloyd’s Rep 21, [2018] WLR(D) 779, [2019] AC 358, [2019] 2 All ER 81, [2018] UKSC 61
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Oct 3 am Video, SC 2018 Oct 3 pm Videos, SC 4 Oct 2018 pm Video
England and Wales
Citing:
CitedCoggs v Bernard ER 235 1738
A pawnee of any pawn or pledge hath a property in it ; for the thing deposited is a security to him, that he shall be repaid the money lent on it. Arid if things will riot be the worse, as jewels, and co he may use them ; but then it must be at his . .
At ComCVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A Csav) ComC 5-Mar-2015
Coffee beans damaged in transit – onus of proof of liability in negligence . .
CitedReeve v Palmer 25-Jun-1858
It is no answer for an attorney, when sued in detinue for a deed which has been intrusted to him by a client, to say simply that he has lost it.
Cockburn CJ said: ‘The jury have found that he lost it: and I am of opinion that that must be taken . .
CitedMorison, Pollexfen and Blair v Walton 10-May-1909
. .
CitedDollar v Greenfield HL 19-May-1905
The plaintiff, a job master, for several years let carriages and Horses to the defendant by the year and let to the defendant a pair of horses, which were quiet in harness and satisfactory to the defendant’s coachman and stop the horses were kept in . .
CitedJoseph Travers and Sons Ltd v Cooper CA 1915
Goods were loaded onto a barge from a ship for delivery at the barge owners wharf in the Thames under a contract, which exempted the barge owner from liability ‘for any damage to goods how’s the weather caused which can be covered by insurance.’ . .
CitedGosse Millard v Canadian Government Merchant Marine 1927
Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable . .
CitedThe ‘RUAPEHU’ CA 1927
The plaintiffs owners of a drydock thought to limit their liability under the Merchant Seamen’s (Liability of Ship Owners and others) Act 1900 section 2 in respect of damage caused by a fire which broke out on the defendant’s vessel going to the . .
CitedBritish Road Services Ltd v Arthur V Crutchley and Co Ltd (No 1) CA 1968
There was a theft from a warehouse of a valuable lorry load of high value, namely, whisky. It was held on appeal that the defendants’ system of protection was not adequate in relation to the special risks involved and the value of the chattel . .
CitedVolcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A CSAV) CA 10-Nov-2016
Claim for damages to cargo of coffee beans – onus of proof of liability for negligence . .
CitedAktieselskabet de Danske Sukkerfabrikker v Bajamar Compania Naviera SA (The ‘TORENIA’) 1983
D’s vessel was chartered to carry a cargo of Cuban sugar in bulk. She loaded some 10000 tonnes at Guayabal. Two bills of lading were issued to the shippers. On April 4th 1979 the vessel set sail for Denmark. On April 13th she encountered heavy . .
CitedF C Bradley and Sons Ltd v Federal Steam Navigation Co Ltd 1927
. .
CitedHomburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
CitedGreat China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The ‘BUNGA SEROJA’) 22-Oct-1998
High Court of Australia – Shipping – Sea carriage of goods – Bill of lading – Hague Rules – Damage to cargo – Cargo properly stowed – Vessel seaworthy and fit in all respects for voyage – Bad weather conditions foreseeable – Perils of the sea – MV . .
CitedSilver v Ocean Steamship Co Ltd CA 1930
The Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage. . .
CitedPaterson Steamships Limited v Canadian Co-Operative Wheat Producers, Limited PC 26-Jul-1934
(Quebec) . .
CitedGH Renton and Co Ltd v Palmyra Trading Corporation of Panama HL 1957
An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in . .
CitedPyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .
CitedJ Spurling Ltd v Bradshaw CA 26-Mar-1956
Denning LJ said: ‘ . . A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof. In the case of non-delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That . .
CitedNotara v Henderson QBD 16-Feb-1872
A cargo of beans was delivered damaged by seawater. The beans had been wetted when the vessel was involved in a collision. She put into Liverpool for repairs, and it was proved that it would have been reasonable for the master temporarily to . .
CitedThomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
CitedAlbacora SRL v Westcott and Laurence Line Ltd HL 1966
The case concerned damage to fish due to previously dormant bacteria being activated by rise in temperature on the voyage. The issue was whether a cargo of fish was capable of withstanding carriage in unrefrigerated spaces, that being the service . .
Not good lawThe Glendarroch CA 9-Feb-1894
The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the . .
CitedNugent v Smith CA 29-May-1876
A mare carried in the hold of the ship, died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself.
The defendant, a common carrier by sea from London . .

Lists of cited by and citing cases may be incomplete.

Transport, Evidence, Negligence

Updated: 01 December 2021; Ref: scu.630953

Griffiths v TUI UK Ltd: QBD 20 Aug 2020

‘This appeal raises a fundamental question concerning the proper approach of a court towards expert evidence which is ‘uncontroverted’. . Where such evidence is uncontroverted, is it open to the court nevertheless to examine the contents of the report and the reasoning leading to the expert’s conclusions and reject those conclusions if the court is dissatisfied with the reasoning? Or is the court obliged, subject to exceptional circumstances, to accept the expert’s conclusions?’

[2020] EWHC 2268 (QB)
Bailii
England and Wales

Contract, Evidence

Updated: 30 November 2021; Ref: scu.653387

Teper v The Queen: PC 1952

The defendant was charged with arson of his own shop. A woman had been heard to shout to a passing motorist ‘Your place burning and you going away from the fire’.
Held: the defendant’s alibi could not be contradicted by the evidence of a policeman that he had heard the woman. The weakness of hearsay evidence is that its quality cannot be directly tested in court: ‘The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.’ A statement admitted under the doctrine of res gestae with words which ‘if not absolutely contemporaneous with the action or event, [are] …. so closely associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement’. However: ‘For identification purposes in a criminal trial the event with which the words sought to be proved must be so connected as to form part of the res gestae, is the commission of the crime itself . . . ‘
As to the rule that words may be proved when they form part of the res gestae, it appears to rest ‘ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial application of these two propositions, which do not always combine harmoniously, has never been precisely formulated in a general principle.’

Lord Normand
[1952] AC 480
Citing:
CitedRegina v Gibson 1887
Evidence had been wrongly admitted. Lord Coleridge CJ said: ‘It is clear that a verdict so obtained in a civil case would not formerly have been allowed to stand, because until the passing of the Judicature Acts the rule was that if any bit of . .

Cited by:
CitedRegina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
ApprovedRegina v Kearley HL 3-Jun-1992
Telephone calls which were made to the defendant’s phone asking for drugs, but made after the arrest of the defendant for supplying drugs were inadmissible as hearsay. They were adduced to prove, by implication, the fact that he, as an occupier of . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Updated: 28 November 2021; Ref: scu.222549

O’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 obtained by improper pressure.
Held: Evidence in civil cases is dealt with in two stages. The court tests whether it is relevant and can therefore be admitted: ‘That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, inquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon’s sense probative. If so, the evidence is legally admissible. That is the first stage of the inquiry.’
Though the test may be simpler than for admission in criminal proceedings, a civil judge might bear in mind thee policy considerations which gave rise to those rules. At the second stage, the court decides the weight of the evidence and what value is to be placed upon it.

Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 26, Times 29-Apr-2005, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534
Bailii, House of Lords
Criminal Justice Act 2003 101 102 103 104 105 106
England and Wales
Citing:
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 . .
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 . .
CitedRegina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .
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: . .
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 . .
CitedHarris v Tippett 1811
Where the character of a witness is relevant to the issue, cross examination is permitted, ‘As to any improper conduct of which he may have been guilty for the purpose of trying his credit; but, when the questions are irrelevant to the issue on the . .
Appeal fromO’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 . .
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 . .
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 . .
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 . .
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 . .
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 . .
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 . .
CitedRegina v Exall 1866
Circumstantial evidence might be compared to a rope comprised of several cords: ‘One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial . .
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
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 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 . .

Cited by:
CitedRegina v Weir, Somanathan,Yaxley-Lennon, Manister, Qiang He and De Qun He CACD 11-Nov-2005
The defendant objected to evidence being used as evidence of bad character against him under the 2003 Act, when it would not have been admissible as similar fact evidence under the old rules.
Held: Obiter dicta in O’Brien did not mean that the . .
CitedDesmond v Bower CA 7-Jul-2009
Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
CitedHunt v Evening Standard Ltd QBD 18-Feb-2011
The defamation claimant sought that certain paragraphs of the defence should be struck out.
Held: Several paragraphs of the defence were struck out, and others left. . .

Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 28 November 2021; Ref: scu.224489

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

Metropolitan 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 refused to allow the plaintiffs to adduce evidence concerning two other hospitals maintained by the same managers in Stockwell and Homerton. The plaintiffs offered this evidence to show that in two recent small-pox epidemics there was more disease in the neighbourhood of those hospitals than in other similar localities which had no small-pox hospital.
Held: (Majority) Such evidence was admissible in principle, so long as its probative value was clearly identified. The test should be that the evidence was capable of establishing a reasonable presumption or inference as to the matter in dispute and that it was reasonably conclusive, not raising ‘a difficult and doubtful controversy of precisely the same kind as the jury have to determine’. Lord Blackburn and Lord O’Hagan, dissenting however, expressed anxiety about the need for strict judicial control over the evidence to be admitted at a civil trial. Lord O’Hagan rejected the evidence altogether. Lord Blackburn said: ‘I am sensible of the force of the remark that such inquiries might be pushed so far as to make a trial of such an issue by a jury impracticable, and as the laws of evidence are framed with a view to a trial at Nisi Prius, I should not like, without further argument and consideration, to say positively that such evidence might not be properly rejected on the ground that a proceeding at Nisi Prius ought to be restrained within practicable limits, though I am not prepared to decide that it might properly be so rejected, and I do not think that it is necessary to decide this point.’

Lord Watson: ‘Still, there appears to me to be an appreciable distinction between evidence having a direct relation to the principal question in dispute and evidence relating to collateral facts, which will, if established, tend to elucidate that question. It is the right of the party tendering it to have evidence of the former kind admitted, irrespective of its amount or weight, these remaining for consideration when his case is closed; but I am not prepared to hold that he has the same absolute right when he tenders evidence of facts collateral to the main issue. In order to entitle him to give such evidence, he must, in the first instance, satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute; and I am disposed to hold that he is also bound to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive, and will not raise a difficult and doubtful controversy of precisely the same kind as that which the jury have to determine. It appears to me that it might lead to unfortunate results if the court had not the power to reject evidence of collateral fact which does not satisfy both of the conditions which I have endeavoured to indicate. If it be the right of a litigant to offer just as much or as little testimony as he thinks fit in support of an alleged collateral fact, which would admittedly be useful if proved, then it must be his right to submit to the jury any number of issues precisely similar to that which they are empanelled to try, and to support these by proof far more unsatisfactory than the evidence bearing directly upon the leading issue.’

Lord Selborne LC, Lord Blackburn, Lord Watson
(1881) 6 App Cas 193 HL, (1882) 47 LT 29, [1881] All ER 536, [1881] UKLawRpAC 12, (1880-1881) 6 App Cas 193
Commonlii
The Metropolitan Poor Act 1867
England and Wales
Cited by:
CitedIn Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .
CitedO’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 . .
AppliedLaws v Florinplace ChD 1981
The defendants purchased a shop in a residential area and used it as a sex shop. Residents claimed in nuisance, and sought an injunction.
Held: The claim raised an arguable cause of action, and the balance of convenience lay in favour of the . .
CitedO’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 . .

Lists of cited by and citing cases may be incomplete.

Evidence, Nuisance

Updated: 28 November 2021; Ref: scu.182806

Official Receiver v Meade-King and Another: CA 30 Jan 2001

The appeals raise a point of some general importance in relation to the powers of the official receiver; namely, whether, at a time when the official receiver is pursuing disqualification proceedings against a former director, the court has jurisdiction to make an order, on an application made by the official receiver under section 236 of the Insolvency Act 1986, requiring third parties to disclose documents and provide information to him in circumstances where the sole purpose of the application is to obtain evidence for use in the disqualification proceedings.

Lord Justice Kennedy, And,
Lord Justice Chadwick
[2001] EWCA Civ 1227, [2002] Ch 239, [2001] 4 All ER 588, [2001] 2 BCLC 555, [2002] BCC 11, [2002] 2 WLR 20
Bailii
Insolvency Act 1986 2236, Access to Justice Act 1999 55(1)
England and Wales

Evidence, Litigation Practice, Insolvency

Updated: 28 November 2021; Ref: scu.147415

Ahuja Investments Ltd v Victorygame Ltd and Another (Contract – Purchase of Commercial Investment Property): ChD 26 Aug 2021

CONTRACT – Purchase of commercial investment property – Fraudulent misrepresentation – Inducement – Breach of contract – Rectification – Penalties – Damages
EVIDENCE – Effect of failure to call relevant witnesses – Adverse inferences – Proper approach to evidence

[2021] EWHC 2382 (Ch)
Bailii
England and Wales

Contract, Evidence

Updated: 27 November 2021; Ref: scu.667363

Fayed v Al-Tajir: CA 1987

The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the document could be used in court.
Held: The document enjoyed immunity from use, and the dispute was non-justiciable.

Kerr LJ
[1988] QB 712, [1987] 3 WLR 102, [1987] 2 All ER 396
England and Wales
Citing:
DistinguishedRex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .

Cited by:
CitedBancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .

Lists of cited by and citing cases may be incomplete.

Evidence, International

Updated: 20 November 2021; Ref: scu.653203

Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: CA 23 May 2014

The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making the decision. That evidence came from an unauthorised leak of diplomatic material.
Held: The appeal failed. The evidence should not be admitted. The leak of a diplomatic report onto the Internet had not violated the documentary archive of the diplomatic mission, but since the cable had already been disclosed to the world by a third party, admitting it in evidence would not have violated the US London mission’s diplomatic archive.
However, even had the evidence been admitted, the decision on the case would have been the same. After reviewing all the material available, including the cable, the evidence given and the Administrative Court’s findings, the Court concluded that: ‘even if the cable had been admitted in evidence, the court would have decided that the MPA was not actuated by the improper motive of intending to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT.’

Lord Dyson MR, Gloster, Vos LJJ
[2014] EWCA Civ 708, [2014] WLR(D) 237, [2014] 1 WLR 2921, [2014] Env LR D4, [2015] 1 All ER 185
Bailii, WLRD
England and Wales
Citing:
See AlsoRegina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
See AlsoRegina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
See AlsoBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
See AlsoSecretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
See AlsoBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
See AlsoBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
Appeal from (Admn)Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
CitedRex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .
CitedFayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .

Cited by:
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Appeal from (CA)Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

Administrative, Environment, Evidence

Updated: 20 November 2021; Ref: scu.525864

Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2): HL 1988

Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission’. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties.
Held: The documents were supplied with the authority of the ITC.
Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: ‘Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.’

Lord Bridge of Harwich
[1988] 1 WLR 16
Vienna Convention on Diplomatic Relations 24 27, International Tin Council (Immunities and Privileges) Order 1972
England and Wales
Citing:
At First InstanceMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
CitedBancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Evidence

Updated: 19 November 2021; Ref: scu.510791

Versloot Dredging Bv v Hdi Gerling Industrie Versicherung Ag and Others: ComC 8 Feb 2013

The defendants had engaged an expert witness, and he had undertaken investigations at the claimant’s premises. The claimant now sought an injunction to restrain the defendants from preventing the expert talking to them independently of the defendants or their solicitors, or in the alternative to withdraw their instructions. The defendants argued that as a provider of ‘technical evidence’ any meeting should be in their presence. The claimants argued that there was no property in a witness.
Held: The injunction was refused. Whilst each situation had to be examined on its own, and a solicitor might properly seek to protect materials disclosed under a confidence: ‘What a solicitor is not entitled to do, or indeed a party, is to order or instruct a witness or a potential witness not to attend an interview with the opposing solicitor or to tell him that he has no real choice in the matter, or to put pressure on him not to comply. Nor must he make it appear that the witness can only be interviewed if the solicitor or his principal consents.’
The situation was novel, but demonstrated a wider principle: ‘that it may be a contempt to interfere with attempts to interview a potential witness, or to prohibit the other side from getting the facts from him. Whether or not there is a contempt depends on whether the interference is improper. If it is, it does not cease to be so because the witness in question is scheduled to appear at the trial at the behest of the opposing party and may be subject to cross-examination thereat.’ After examining the authorities, Clarke J said: ‘ Improper interference with access to a witness may mean that, although the witness is called at trial, the entirety of the evidence that he could give is not in fact elicited, because it has not been elicited by the party who called him, and because the opposing party was not aware, or not fully aware, that that witness had such evidence to give, with the result that the best evidence is not available to the court. That seems to me good reason for not confining the dicta in these cases to circumstances in which the witness in question is not to give evidence at trial.’

Christopher Clarke J
[2013] EWHC 581 (Comm)
Bailii
England and Wales
Citing:
CitedRegina v Kellett CACD 1976
The defendant saw disparaging statements made about him by neighbours in the course of divorce proceedings. He wrote to them and asked them to withdraw the statements they had made and threatened proceedings for slander. He was charged with . .
CitedPorton Capital Technology Funds and Another v 3M UK Holdings Ltd and Another ComC 2-Feb-2010
The confidentiality obligation owed by a witness engaged by a party does not cease following disclosure in accordance with the CPR . .
CitedConnolly v Dale QBD 11-Jul-1995
The applicant defendant’s enquiry agent was prevented by officers responsible to Detective Superintendent Dale from identifying and interviewing potential witnesses for trial who might support his alibi. When the agent had sought to show a . .
CitedHarmony Shipping Co SA v Saudi Europe Line Limited (‘The Good Helmsman’) CA 1979
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.472078

Ofulue and Another v Bossert: HL 11 Mar 2009

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

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

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

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.317966

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

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

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

Hoffmann LJ, Swinton Thomas and Leggatt LLJ
Gazette 18-Jan-1995, Times 08-Dec-1994, [1996] PNLR 74, [1994] EWCA Civ 39
Bailii
England and Wales
Citing:
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 . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.84120

Air Canada v Secretary of State for Trade: HL 1983

The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to discover the truth. By so doing, it not only helps towards a just determination; it also saves costs. A party who discovers timeously a document fatal to his case is assisted as effectively, although less to his liking, as one who discovers the winning card; for he can save himself and others the heavy costs of litigation.
The House was divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the first view.
The purpose of discovery is to assist the parties as well as the Court in determining the truth and by doing so, not only help to discover the truth and make a just determination of the case, but also save costs.
Where a prima facie case of public interest immunity is made out, a party who wishes to invite the court to inspect material before determining whether it should after all be deployed must show that it is likely to give substantial support to his or her case. However, public interest immunity is not a privilege, which may be waived by the Crown or by any party.
Lord Wilberforce described the duty of the court to litigants: ‘In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties – a duty reflected by the word ‘fairly’ in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done.’
When considering the ordering of discovery for which immunity is claimed, there must be something beyond speculation, some concrete ground for belief which takes the case beyond a mere fishing expedition.
Lord Fraser of Tullybelton discussed the circumstances in which a judge should inspect documents in order to decide whether or not a public interest immunity is made out, and said: ‘The test is intended to be fairly strict. It ought to be so in any case where a valid claim for public interest immunity has been made. Public interest immunity is not a privilege which may be waived by the Crown or by any other party.’
Lord Scarman said that the Crown, when it puts forward a public interest immunity objection, ‘is not claiming a privilege but discharging a duty’.
It is not for the Crown but for the Court to determine whether the document should be produced, and ‘In my judgment documents are necessary for fairly disposing of a cause or for the due administration of justice if they give substantial assistance to the court in determining the facts on which the decision in the cause will depend.’

Lord Wilberforce, Lord Scarman, Lord Fraser of Tullybelton
[1983] 2 AC 394, [1983] 1 All ER 161, [1983] 2 WLR 494
England and Wales
Citing:
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 . .

Cited by:
CitedAdelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
CitedIn re an Inquiry Under The Company Securities (Insider Dealing) Act 1985 HL 1988
The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . . .
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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.278225

KV (Scarring – Medical Evidence): UTIAC 23 May 2014

UTIAC 1. When preparing medico-legal reports doctors should not – and should not feel obliged to – reach conclusions about causation of scarring which go beyond their own clinical expertise.
2. Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.
3. Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:-
(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and
(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will.
4. A lack of correlation between a claimant’s account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility.
5. Whilst the medical literature continues to consider that scarring cannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years.
6. Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant’s account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant’s evidence so as to decide whether (to the lower standard) it is credible.

Storey, Dawson, Kopieczek UTJJ
[2014] UKUT 230 (IAC)
Bailii
England and Wales
Cited by:
Appeal FromKV (Sri Lanka) v Secretary of State for The Home Department CA 7-Mar-2017
. .

Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Updated: 10 November 2021; Ref: scu.534244

Wright v Doe Dem Tatham: HL 22 May 1838

In an issue on the sanity of a testator, who made his will in 1825, the devisee offered in evidence the following letters of deceased persons, which were found open, and addressed to testator, with other papers bearing his indorsements, in a cupboard under his book-case in his private room : 1st, a letter dated in 1784, from testator’s cousin, with whom he was proved to be in correspondence in 1787: 2d, a letter dated in 1786, from M., who desired testator to direct his attorney to propose terms of agreement with A. or W. ; this letter was indorsed by testator’s attorney, long since deceased : 3dly, a letter dated 1799, from the curate of testator’s parish.
Held: that they were not admissible in evidence.

[1838] EngR 649, (1838) 4 Bing NC 489, (1838) 132 ER 877
Commonlii
England and Wales
Citing:
See AlsoWright v Doe Dem Sandford Tatham KBD 13-Jun-1837
The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence.
Held: such letters were not admissible unless . .

Cited by:
See AlsoGeorge Wright v Sandford Tatham 7-Jun-1838
On a question of the competence of a party to make a will, letters written to that party by person since deceased, and found (many years after their date) among his papers, are not admissible in evidence without proof that he himself acted upon . .

Lists of cited by and citing cases may be incomplete.

Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.312655

Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others: HL 17 Oct 2002

The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards of evidence therefore applied, and hearsay evidence was admissible. Nevertheless, the test as to whether it was appropriate to make an order was to the criminal standard. It had been Parliament’s intention to cast these proceedings in a civil mould. The absence of a punitive element in the resulting order, meant that Human Rights law did not make it a criminal procedure. ‘proceedings to obtain an anti-social behaviour order are civil proceedings under domestic law.’ Nevertheless, the heightened civil standard had become almost indistinguishable from the standard in criminal cases, and the case must be proved to the heightened civil standard. Though an anti-social behaviour order may impose restrictions greater than would be a criminal penalty, the essential purpose of an oder is preventative.

Steyn, Hope, Hutton, Hobhouse, Scott LL
Times 21-Oct-2002, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27
House of Lords, Bailii
Crime and Disorder Act 1998 1, European Convention on Human Rights 6
England and Wales
Citing:
CitedSteel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Appeal fromRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
At First InstanceRegina v Manchester Crown Court, ex parte McCann and others QBD 22-Nov-2000
An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the . .
CitedRegina v Kansal CACD 24-Jun-1992
K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Appeal fromRegina v Marylebone Magistrates Court ex parte Andrew Clingham Admn 20-Feb-2001
The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained . .
CitedDombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
CitedRegina v Secretary of State for Trade and Industry Ex Parte McCormick CA 10-Feb-1998
Statements made under compulsion could be used in disqualification proceedings at discretion of the Secretary of State. . .
CitedIn Re Carecraft Construction Co Ltd ChD 13-Oct-1993
A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that . .
CitedOfficial Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
CitedGough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
CitedGough and Another v Chief Constable of Derbyshire; Regina (Miller) v Leeds Magistrates’ Court; Lilley v Director of Public Prosecutions QBD 13-Jul-2001
Challenges were made to the powers banning the free movement of those convicted of offences of violence. Orders had been made banning the applicants from attending football matches, and requiring attendance at police stations at times of matches . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedProprietary Articles Trade Association v Attorney-General for Canada PC 1931
The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the . .
CitedB v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
CitedCustoms and Excise Commissioners v City of London Magistrates’ Court QBD 2000
Access orders were sought by the Customs and Excise against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted ‘criminal proceedings’ within the meaning of section . .
CitedAmand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
CitedHan and Yau t/a Murdishaw Supper Bar, and Others v Commissioners of Customs and Excise CA 3-Jul-2001
The applicant claimed that proceedings under which he had been accused of fraud in dishonestly evading VAT liability were in reality criminal proceedings and that the minimum standards of a fair trial applied.
Held: The characterisation under . .
CitedS v Miller SCS 2001
After an assault S, aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal decided not to prosecute, and the matter was reported to the police and to the reporter and on to a children’s hearing to consider if measures . .
CitedMcGregor v D 1977
With regard to proceedings under the 1968 Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff . .
CitedLutz v Germany ECHR 25-Aug-1987
Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights . .
CitedAlbert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
CitedConstanda v M SCS 1977
The child had been referred to a children’s hearing on the basis that he was exposed to moral danger in terms of section 32(2)(b).
Held: As the whole substratum of the ground of referral was that the child had performed certain acts which . .
CitedAdolf v Austria ECHR 26-Mar-1982
An elderly lady complained that the applicant had assaulted her. The police investigated and reported back to the prosecutor who referred the matter to the Innsbruck District Court. The court registered the case as a ‘punishable act’ under section . .
CitedBenham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
CitedRavnsborg v Sweden ECHR 23-Mar-1994
Article 6 did not apply to proceedings where the applicant had been fined for making improper statements in written observations before the Swedish courts. The proceedings were regarded as being outside the ambit of article 6 because they were . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedGaryfallou Aebe v Greece ECHR 24-Sep-1997
The fact that only a fine was imposed did not prevent an allegation being one of a criminal offence. . .
CitedBendenoun v France ECHR 24-Feb-1994
The applicant complained of non-disclosure by the prosecution.
Held: His application failed because the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the . .
CitedMcFeeley and others v The United Kingdom ECHR 15-May-1980
(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the . .
CitedRaimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
IllustrativeSaidi v France ECHR 20-Sep-1993
S had been convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness.
Held: ‘The court reiterates that the taking of evidence is governed primarily by the rules of . .
CitedGuzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
CitedM v Italy ECHR 1991
The Commission held that article 6(2) did not apply to the confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. . .
IllustrativeKostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
CitedOzturk v Germany ECHR 21-Feb-1984
A minor infringement may be the subject of a criminal charge: ‘If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 . .
IllustrativeUnterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .
CitedIn re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
CitedThe Chief Constable of Lancashire v Potter Admn 13-Oct-2003
The claimant appealed refusal of an Anti-Social Behaviour order by the magistrates. The respondent was a street prostitute in Preston. The magistrates had declined to aggregate her behaviour with that of others to find that it caused harrassment . .
CitedIn re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedCommissioner of Police of the Metropolis v Hooper QBD 16-Feb-2005
The police applied to the court for a closure order in respect of premises they said were being used for the sale of Class A drugs. The tenant sought an adjournment, which was granted as were two later applications. On the last hearing, the police . .
CitedMoat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
CitedR, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
DistinguishedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Appealed toRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Appealed toRegina v Marylebone Magistrates Court ex parte Andrew Clingham Admn 20-Feb-2001
The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained . .
CitedCampbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedChief Constable of Merseyside Police v Harrison Admn 7-Apr-2006
The occupier of property appealed against a closure order. It was said that it had been used for the sale of drugs. The question was whether the civil standard of proof applied, as it was used in anti-social behaviour orders, when an application was . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedO v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedLangley v Preston Crown Court and others CACD 30-Oct-2008
The defendant sought to appeal against a ‘stand-alone’ anti-social behaviour order. The parties disputed whether an appeal lay. The act created an appeal against the making of an order but in this case it was a renewed order.
Held: In the . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
CitedPerry v Chief Constable of Humberside Police Admn 18-Oct-2012
The defendant appealed against an anti-social behaviour order. He had been a journalist, and began a private newsletter and campaign alleging amongst other things corruption in the police. He complained that his article 10 rights had been infringed. . .
CitedNewman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
CitedBirmingham City Council v James and Another CA 17-May-2013
The appellant challenged an injunction under the 2009 Act excluding him from parts of Birmingham. He said that it prevented him visiting his mother.
Held: The appeal failed. Moore-Bick LJ said: ‘It was for the judge to decide on the basis of . .

Lists of cited by and citing cases may be incomplete.

Evidence, Crime, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.177450

Amwell View School v Dogherty: EAT 15 Sep 2006

amwell_dogherty

The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, saying also that it had been disclosed too late.
Held: The evidence contained in the recordings was relevant evidence. The question was whether probative evidence could be excluded. To record the private deliberations of the panel was contrary to the public interest. The recordings of the public and private parts of the hearings were to be treated separately. The employers said that the deliberations of the panel were covered by Article 8. They were not protected by respect for family life, and ‘Each of the panel members had put themselves forward to carry out an aspect of the important voluntary work undertaken by many individual members of the public in the governance of schools. To that extent they were putting themselves, and the contributions that they made during the course of that work, into the ‘public’ domain whilst acting in that role. It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in that socially-important public or quasi-public function. In our judgment, the privacy element of the right to ‘respect for . . private life’ of such a school governor is not engaged at all in the present circumstances. ‘ The claimants had abandoned any suggestion that the recording was a criminal act. Nevertheless, whilst the tribunal were correct to admit the evidence of the public part of the hearing the admission of the recording of the board’s private deliberations was against public policy: ‘there is an important public interest in parties before disciplinary and appeal proceedings complying with the ‘ground rules’ upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the ‘right’ decision) than the understanding that their deliberations would be conducted in private and remain private. ‘

Luba QC, Lewis, Tatlow
[2006] UKEAT 0243 – 06 – 1509, Times 05-Oct-2006, [2007] ICR 135, [2007] IRLR 198
Bailii
Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 14(2), European Convention on Human Rights 8
Citing:
CitedXXX v YYY CA 2004
Buxton LJ: ‘The first and most important rule of the law of evidence, though one that is not always perceived or observed, is that evidence is only admissible if it indeed is relevant to an issue between the parties.’ . .
CitedBarracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
CitedTaylor-Sabori v The United Kingdom ECHR 22-Oct-2002
The applicant had been convicted of serious criminal offences. There were admitted into evidence intercepts of messages to his pager. He complained that this infringed his right to respect for his private correspondence.
Held: The pager . .
CitedElahi v The United Kingdom ECHR 20-Jun-2006
The claimant complained of the use by the courts of evidence obtained by covert listening devices. In 1996, the chief constable had given authorisations to use a covert listening device in the applicant’s home. It had been in accordance with . .
CitedJones 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 . .
CitedMcGowan v Scottish Water EAT 23-Sep-2004
A court or tribunal may properly admit relevant evidence even where it has been gathered in breach of an Article 8 right to ‘privacy’ where to do so is adjudged to be necessary in order to secure a ‘fair’ hearing as required by both the common law . .
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 . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedHeath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
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 . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
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 . .

Cited by:
CitedQuinn v Ni Trucks Ltd NIIT 27-Oct-2008
. .
CitedCampbell v Port of Larne, Larne Harbour Ltd NIIT 16-Jan-2009
NIIT Age discrimination is now prohibited, in certain employment situations, by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the Regulations’).
The provisions of the Regulations which . .
CitedWilliamson v The Chief Constable of The Greater Manchester Police and Another EAT 9-Mar-2010
EAT PRACTICE AND PROCEDURE
Appellate jurisdiction / reasons / Burns-Barke
Case Management
The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by . .
CitedVaughan v London Borough of Lewisham and Others EAT 1-Feb-2013
EAT PRACTICE AND PROCEDURE – Admissibility of Evidence
In support of a discrimination claim the Claimant sought permission to adduce in evidence 39 hours’ worth of covert recordings which she had made of . .
CitedPunjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .

Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.245019

Ladd 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 a retrial.
Held: The Court of Appeal refused to receive the further evidence and dismissed the appeal. The court considered guidelines for the admission of new evidence on an appeal against the background of its availability at the first hearing. Such evidence might be admissible where a witness had made a material mistake and wished to correct it. If a witness had been bribed or coerced into telling a lie and wished to correct it, then a retrial might be appropriate.
Lord Denning said: ‘first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.’

Denning, Parker, Hobson LJJ
[1954] 1 WLR 1489, [1954] 3 All ER 745, [1954] EWCA Civ 1
Bailii
England and Wales
Citing:
CitedBraddock v Tillotsons Newspapers Ltd CA 1949
. .
CitedRichardson v Fisher 5-Feb-1823
. .
CitedBrown v Dean 1909
In the interest of society as a whole, litigation must come to an end, and ‘When a litigant has obtained judgment in a Court of justice . . he is by law entitled not to be deprived of that judgment without very solid grounds’.
Lord Loreburn LC . .

Cited by:
AppliedHertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedVoaden v Champion ( ‘Baltic Surveyor’ ) CA 31-Jan-2002
The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted . .
AppliedDennis Pritchard Evans v Tiger Investments Limited, David John Moore CA 20-Feb-2002
The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had . .
CitedZarvos v Pradhan and another CA 7-Mar-2003
The landlord had occupied the premises as a restaurant, but subsequently let it to the respondents. The landlord opposed renewal of the tenancy saying that it intended to recommence trading, and now appealed a finding in favour of the tenant.
CitedRegina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
CitedRegina v Secretary of State for the Home Department ex parte Momin Ali CA 1984
The court discussed the applicability of Ladd -v Marshall principles as to the admission of new evidence in public law proceedings. Sir John Donaldson MR said: ‘the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,’ . .
AppliedLord and Another v Jessop CA 21-Apr-1999
The defendant appealed an award of damages for breach of a covenant for quiet enjoyment. He said there had been a licence only.
Held: The defendant was not to be allowed to admit fresh evidence on appeal. Appeal dismissed. . .
CitedCouwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
CitedRegina v Secretary of State for the Home Department Ex Parte Onibiyo CA 28-Mar-1996
More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of . .
CitedIn re K (Children) (Non-accidental injuries: Perpetrator: New Evidence) CA 27-Aug-2004
The children had been taken into care, and freed for adoption. The mother appealed saying the blame for non-accidental injury was misplaced. The court had not thought her responsible for the non-accidental injuries, but she had been unwilling to . .
CitedDr Giuseppe Ruscill, Council for the Regulation of Health Care Professionals v The General Medical Council and Another, The Council for the Regulation of Health Care Profesionals, The Nursing and Midwifery Council, Truscott CA 20-Oct-2004
The Council sought to refer to the High Court decisions to acquit the doctors of professional misconduct. The doctors argued that the power only existed for lenient sentences.
Held: The power to refer for undue leniency included the situation . .
CitedBreeze v Ahmad CA 8-Mar-2005
The deceased’s widow claimed that the GP defendant had failed to ensure the proper treatment of the deceased, leading to his death. The court had found the defendant negligent, but that the negligence had not caused the death.
Held: The judge . .
CitedSecretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
CitedFisher v Cadman and Others ChD 14-Jun-2005
The trial was concluded and the judgment had been given, but before the order was handed down, the defendants applied to be allowed to provide further evidence.
Held: The standards of Ladd v Marshall might be applied in such a situation, but . .
CitedCouwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
CitedWilliams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .
CitedRudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-Aug-1997
Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as . .
CitedWilliams v The Queen PC 23-Nov-1998
(Saint Vincent and the Grenadines) The defendant was convicted of having killed his wife. He had killed his children but faced no charge on that issue. He complained of the admission of evidence showing that he had killed the children. In his . .
CitedRiyad Bank and others v Ahli United Bank (Uk) Plc CA 23-Nov-2005
A renewed application for leave to appeal was made as regards a valuation element of the judgment. New expert evidence was sought to be admitted.
Held: Leave was refused: ‘the Court of Appeal should be particularly cautious where what is . .
CitedHamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
CitedCharlesworth v Road Relay 2001
It will generally only be in rare cases that the judge will exercise his discretion to admit new evidence after judgment has been handed down. . .
CitedParker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
CitedB, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
CitedPrince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
CitedAshton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
CitedBanks and Another v Cox and Another CA 17-Jul-2000
The court considered the principles of admitting new evidence on appeal after the introduction of the new rules. Moritt LJ: ‘In my view the principles reflecting in the rules in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application . .
CitedCapital Bank Plc v Mcdiarmid CA 7-Feb-2006
The defendant was said to have guaranteed a hire purchase agreement. The principle, a company, had become insolvent. He denied having signed the document.
Held: Leave to appeal should not be granted. The court considered further evidence. That . .
CitedGoulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
CitedElectra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others CA 23-Apr-1999
In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly . .
CitedAl-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
CitedThune v London Properties Limited CA 1990
The court considered the applicability of the principles in Ladd v Marshall to an appeal from an interlocutory order being an application for security for costs.
Held: The application to admit fresh evidence was refused. Bingham LJ: ‘There is . .
CitedLivingstone v The Adjudication Panel for England Admn 19-Oct-2006
The claimant challenged a finding that as Mayor of London offensive remarks he had made to a journalist as he was pursued leaving a private party had brought his office into disrepute.
Held: The appeal succeeded. Though the remarks may have . .
CitedAli v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
CitedFerguson v Welsh HL 29-Oct-1987
The plaintiff sought damages for personal injury. A council had engaged a competent contractor to carry out demolition works. Unknown to the council, the contractor sub-contracted the works to two brothers who worked in a highly dangerous manner. . .
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
CitedZambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
CitedDavid v Charlemagne CA 1996
The rule in Ladd v Marshall did not apply on an appeal from the refusal of an application to set aside a default judgment, the additional evidence being sought to be introduced only on appeal, not on the original application, because there had been . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
CitedLifely v Lifely CA 30-Jul-2008
Unusually the court of appeal heard fresh oral evidence to assist in determing the appeal. Diaries had been discovered only after the trial, and the contents were of direct relevance. Ladd v Marshall might allow oral evidence on appeal in . .
CitedWileman v Minilec Engineering Ltd 1988
The principles of Ladd v Marshall apply also in employment tribunal proceedings. . .
CitedTodd (T/A Hygia Professional Training) v Cutter EAT 13-Jul-2007
EAT PRACTICE AND PROCEDURE
Perversity
Appeal by Respondent based on an application for fresh evidence, which was clearly material and credible, but which did not satisfy the third Ladd v Marshall test . .
CitedWebster (the Parents) v Norfolk County Council and others CA 11-Feb-2009
Four brothers and sisters had been adopted after the parents had been found to have abused them. The parents now had expert evidence that the injuries may have been the result of scurvy, and sought leave to appeal.
Held: Leave was refused. . .
CitedLangdale v Danby HL 1982
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary . .
CitedRudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
ApprovedSkone v Skone and Another HL 1971
The husband appealed, seeking a new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had . .
CitedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
CitedHamilton v Al Fayed CA 21-Dec-2000
The claimant sought an order saying that his counsel had discarded confidential documents which were retrieved from his dustbin by a Mr Pell who then sold them to his opponent who had used them to obtain an unfair advantage.
Lord Phillips MR . .
CitedRoe and Another v Robert McGregor and Sons Ltd; Bills v Roe CA 1968
The plaintiff was driving a van at night. He didn’t see a ‘road closed’ sign erected by the defendant contractors, and proceede down a 30 ft bank injuring himself and his passenger. He said the contractors’ the sign was inadequate and that he had . .
CitedWestlaw Services Ltd and Another v Boddy CA 30-Jul-2010
The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was . .
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 . .
CitedSecretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
CitedDickinson and Others v Tesco Plc and Others CA 4-Feb-2013
The court considered the practice on claims for hire of a replacement car on credit terms after a road traffic accident. The defendant resisted paying for the credit where the claimant could have hired without a credit arrangement. The defendants . .
CitedKhudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
CitedCampbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
CitedMuscat v Health Professions Council CA 21-Oct-2009
A radiographer had asked the court to reconsider its verdict in a disciplinary action. He was said to have caused two female patients (on different occasions) to remove their clothing for the purposes of carrying out a scan, when it was not . .
CitedTZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
CitedTamiz v Google Inc CA 14-Feb-2013
The respondent hosted a blogs platform. One of its user’s blogs was said by the appellant to have been defamatory. On discovery the material had been removed quickly. The claimant now appealed against his claim being struck out. He argued as to: (1) . .
AppliedGreen v Broadcasting Corporation of New Zealand 22-Sep-1988
(Court of Appeal of New Zealand) The plaintiff had created a hugely sucessful TV programme in the UK, called Opportunity Knocks. He now appealed against rejection of his claim in copyright alleging that the defendant had copied the format, and also . .
CitedIlott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
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 . .
CitedGohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
CitedGohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
CitedNicholls v Coroner for City of Liverpool Admn 8-Nov-2001
As the deceased was arrested he swallowed something. He was examined by a doctor and denied that he had swallowed drugs, but his condition deteriorated and he died at hospital. The coroner refused to admit the evidence of a professor who was highly . .

Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.180505

Liddell v Middleton: CA 1996

The Court was concerned with a traditional road traffic accident in which a pedestrian was injured by a moving car. A question arose as to the admissibility of an expert.
Held: Stuart-Smith LJ stated of the test of admissibility laid down in the 1972 Act: ‘But that section in no way extends the principles upon which expert evidence is admissible. An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. In the reference to an ‘issue in the proceedings in question’ relates to a factual issue and not to the conclusion of law based upon such fact’.
Trial in this jurisdiction was by Judge not expert and that there was a regrettable tendency in personal injury cases involving road traffic and industrial accidents for the parties to enlist the services of experts whether necessary or not. The Judge observed that this simply added to the already high cost of litigation and the length of trials.
Stuart-Smith LJ identified categories of case where expert evidence was both necessary and desirable in road traffic cases including: those where there are no witnesses capable of describing what happened, those where deductions may have to be made from circumstantial evidence or from the position of vehicles after the accident, marks on the road or damage to vehicles, the speed of a vehicle, or the relevant positions of the parties in the moments leading up to the impact. He then lay down the limits of expert evidence: ‘In such cases the function of the expert is to furnish the Judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the Judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be. What he is not entitled to do is to say in effect ‘I have considered the statements and special evidence of the eyewitnesses in this case and I conclude from their evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point’. These are facts for the trial Judge to find based on the evidence that he accepts and such inferences as he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the Court, on which the expert’s opinion is wholly irrelevant and therefore inadmissible’.

Stuart-Smith LJ
[1996] PIQR P36
Civil Evidence Act 1972&
England and Wales
Cited by:
CitedAllen v Cornwall Council QBD 20-May-2015
The claimant was injured riding his bicycle, and alleged failure by the respondent highway authority. The court now considered an application for leave to appeal against an order allowing the production of evidence of an expert in cycling skills and . .
CitedSinclair v Joyner QBD 23-Jun-2015
The claimant cyclist sought damages from the defendant motorist after a collision in which she was severely injured. They approached each other on a narrow lane. The claimant said that the defendant did not pull over as much as she should, and the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Personal Injury, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.549434

B v Chief Constable of Avon and Somerset Constabulary: QBD 5 Apr 2000

The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section 2(1)(b).
Held: The civil standard of proof is flexible and can vary with the seriousness of the allegation made. The court considered the standard of proof applicable: ‘In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates’ court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.’ and ‘There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court’s order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.’
Lord Bingham of Cornhill: ‘The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court’s order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.’ and ‘If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed.’

Lord Bingham of Cornhill, CJ
[2001] 1 WLR 340, [2000] Po LR 98, [2000] EWHC 559 (QB), [2001] 1 All ER 562
Bailii
Crime and Disorder Act 1998 2
England and Wales
Citing:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Cited by:
CitedGough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
CitedIn re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
CitedRe ET (Serious Injuries: Standard of Proof) FD 2003
The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed . .
DistinguishedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedCampbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
CitedW, Regina (on the Application Of) v Director of Public Prosecutions Admn 8-Jun-2005
The defendant appealed a conviction for breaching an anti-social behaviour order. The order had prohibited him from committing any criminal act. It was now challenged as being too wide a prohibition.
Held: ‘The defendant had already been . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedFiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedLangley v Preston Crown Court and others CACD 30-Oct-2008
The defendant sought to appeal against a ‘stand-alone’ anti-social behaviour order. The parties disputed whether an appeal lay. The act created an appeal against the making of an order but in this case it was a renewed order.
Held: In the . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.179863

Morris v Beardmore: HL 1981

Parliament does not intend to authorise tortious conduct except by express provision. It is not for the courts to alter the balance between individual rights and the powers of public officials. The right of privacy is fundamental.
Lord Scarman said: ‘When for the detection, prevention or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation. A constable, who in purported execution of his duty has infringed rights which Parliament has not expressly curtailed, will not, therefore, be able to show that he has acted in execution of his duty, unless (and this will be rare) it can be shown by necessary implication that Parliament must have intended to authorise such infringement . .
[I]t is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental private rights and liberties than Parliament has expressly authorised.’
Lord Roskill said that in Sang the House of Lords had carefully defined the limits of judicial discretion to exclude evidence otherwise clearly admissible, setting at rest many doubts which had previously existed as to its existence and scope, and that it would be a retrograde step to enlarge upon its now narrow limits or to engraft an exception, merely in order to meet the situation under discussion in that case.

Lord Diplock, Lord Edmund-Davies, Lord Scarman
[1981] AC 446, [1980] 2 All ER 753, [1980] RTR 321, (1980) 71 Cr App R 256, [1980] 3 WLR 283, (1980) 144 JP 331
England and Wales
Citing:
ExplainedRegina 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 . .

Cited by:
CitedRegina on the Application of PW v Commissioner of Police for the Metropolis, The London Borough of Richmond-Upon-Thames Admn 20-Jul-2005
W, a child of 14 sought judicial review of an order to remove persons under the age of 16 from dispersal areas in Richmond.
Held: The issue was whether the power given to police to remove youths was permissive or coercive. The power given ‘is . .
CitedGillies v Procurator Fiscal, Elgin HCJ 1-Oct-2008
The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Police, Evidence

Leading Case

Updated: 09 November 2021; Ref: scu.228926

Regina 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.
Held: It was permissible to use special counsel, but this must genuinely be a last resort. The court has to be satisfied that no other course of action will adequately meet the need for a fair trial. A judge’s role is as arbiter of the law, not of the facts, and his first duty was to ensure a fair trial. The House identified the questions to be answered before a decision was made not to allow full disclosure.
Lord Bingham said: ‘If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted . . Neutral material or material damaging to the defendant need not be disclosed.’
and ‘The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good.’
Lord Bingham said: ‘Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant . . should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.’

Lord Bingham of Cornhill, Lord Woolf, Lord Hope, Lord Walker. Lord Carswell
[2004] UKHL 3, Times 06-Feb-2004, Gazette 26-Feb-2004, [2004] 2 AC 134, [2004] 2 WLR 335, [2004] HRLR 20, [2004] 2 Cr App R 10, [2004] 1 All ER 1269, [2004] 16 BHRC 332
House of Lords, Bailii
Criminal Procedure and Investigations Act 1996 3(1)(a) 7(2)(a)
England and Wales
Citing:
CitedIn re Gunawardena, Harbutt and Banks CACD 1990
The defendant applied to stay the proceedings on the grounds that they were an abuse of process.
Held: The application for leave to appeal was rejected. The application to stay was not within the ambit of the preparatory hearing and therefore . .
CitedRegina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
CitedRegina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina v Turner (Paul) CA 11-Oct-1994
An application to exclude evidence for public interest immunity was to be recorded verbatim. The court emphasised the need to scrutinise, with great care, applications for disclosure of details about informers. . .
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 . .
CitedKlass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
CitedEdwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
CitedBendenoun v France ECHR 24-Feb-1994
The applicant complained of non-disclosure by the prosecution.
Held: His application failed because the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
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 . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
CitedJasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
CitedPG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
CitedAtlan v The United Kingdom ECHR 19-Jun-2001
It was an infringement of the defendant’s right to a fair trial for the trial judge not to be involved in ex parte applications to exclude evidence. The defect could not be remedied by the same evidence later being presented also to the appeal court . .
CitedRegina v Early, Regina v Bajwa, Regina v Vickers etc CACD 26-Jul-2002
The appellants challenged their convictions after several trials, alleging dishonesty on the part of the Customs and Excise prosecuting team in misleading the trial judges when making pre-trial applications. Several prosecutions had depended upon . .
CitedEdwards and Lewis v The United Kingdom ECHR 22-Jul-2003
(Commission) The claimants said that the procedures used to secure their convictions amounted to entrapment, and that UK criminal procedures did not give sufficient protection so as to provide a fair trial. One was arrested with heroin, and the . .
CitedDowsett v The United Kingdom ECHR 24-Jun-2003
The applicant had been convicted along with others of a murder. He now alleged that the police had refused to disclose evidence which would have supported his defence. Some had been disclosed but some still withheld on public interest grounds by the . .
Not good lawRegina v Smith (Joe) CACD 20-Dec-2000
The defendant was arrested for burglary and a non-intimate sample taken without his consent. The DNA profile matched blood at the scene of the burglary, and this match was the bedrock of the prosecution case. Before the trial, prosecuting counsel . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedRegina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
CitedRegina v Stipendiary Magistrate for Norfolk ex parte Dean Taylor Admn 1-Jul-1997
The prosecutor applied ex parte to the magistrate for an order that he need not disclose certain material to the defendant. Though the hearing was inter partes, the content of the protected material was not shown to the defendant’s solciitor. . .
CitedRegina (Director of Public Prosecutions) v Acton Youth Court QBD 21-Jun-2001
It was not normally necessary for magistrates to excuse themselves from further involvement in a case after making preliminary rulings on a request for public immunity certificates. The purpose of that ex parte hearing was to ensure the protection . .
Appeal fromRegina v H; Regina v C CACD 16-Oct-2003
The defendants were charged with serious drugs offences. The prosecutor had applied for public interest immunity certificates. The judge had required the appointment of independent counsel. The prosecutor appealed.
Held: The same district . .

Cited by:
AppealRegina v H; Regina v C CACD 16-Oct-2003
The defendants were charged with serious drugs offences. The prosecutor had applied for public interest immunity certificates. The judge had required the appointment of independent counsel. The prosecutor appealed.
Held: The same district . .
CitedRegina v G and Another (PII: Counsel’s duty) CACD 27-May-2004
During the course of the trial, the prosecutor had inadvertently disclosed to the defence legal team material which had been subject to a public interest immunity certificate. The judge made an order under the 1987 Act that the defence team must not . .
CitedRoberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
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: . .
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 Alibhai and Others CACD 30-Mar-2004
The defendants appealed against their convictions for conspiracy to manufacture and distribute counterfeit Microsoft products. They said that inadequate disclosure had been provided by Microsoft. The principal witness was a participating informant . .
CitedDirector of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
CitedMurungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
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 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 . .
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 . .
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 . .
CitedRegina v Barkshire and Others CACD 20-Jul-2011
Undervover police were agents provocateur
The defendants appealed against their convictions for aggravated trespass, saying that the police had infiltrated their environmental protest group, and that the undercover officer had acted as agent provocateur to entrap them into the offences. . .
CitedNunn, Regina (on The Application of) v Chief Constable of Suffolk Constabulary and Another SC 18-Jun-2014
Limits to Duty To Investigate
The claimant had been convicted of a murder. He continued to protest his innocence, and now sought judicial review of the respondent’s decision not to act upon his requests for further investigations which might prove his innocence.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Leading Case

Updated: 09 November 2021; Ref: scu.192677

British Oxygen Co Ltd v Board of Trade: HL 15 Jul 1970

Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders were essentially that of storage or distribution.
Held: It was reasonable and right for a public authority to make known to those interested the policy it was going to follow: ‘by doing so fruitless applications involving expense and expenditure of time might be avoided’. If a policy is not to be applied in accordance with its meaning, as would have been the case on the original wording of section 6.1 of the licensing policy, there can be no such guidance.’ and
As to the manner of implementation of a discretion given by statute: ‘Since there is a rule that a public authority is not entitled to fetter its discretion, it is obliged to keep open the possibility of not applying that policy in any particular case if the specific circumstances of that case warrant the disapplication of the policy in relation to it.’
Lord Reid said: ‘So a storage tank built on wheels for convenience might not be regarded as a vehicle if its real purpose was storage rather than transportation. But the primary purpose of the hydrogen cylinders with the trailer appears to be for delivery and not for storage of the hydrogen.’
. . And ‘The general rule is that anyone who has to exercise a statutory discretion must not’ shut his ears to an application ‘ (to quote from Bankes LJ . .). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing. In the present case the respondent’s officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so. The respondent might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant.’
Viscount Dilhorne found that ‘storage ends when delivery to a customer begins’

Viscount Dilhorne, Lord Reid
[1971] AC 610, [1970] UKHL 4, [1970] 3 All ER 165, [1970] 3 WLR 488
Bailii
Industrial Development Act 1966
England and Wales
Citing:
CitedRex v Port of London Authority Ex parte Kynoch Ltd CA 1919
Bankes LJ said: ‘There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in . .

Cited by:
CitedRegina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
CitedRegina (on the Application of Chorion Plc) v Westminster City Council Admn 5-Oct-2001
A licensing policy had been challenged and then amended by the defendant council to meet the claimant’s concerns. Though the remaining issue was as to costs; the judge had to decide whether the challenge had been well founded.
Held: The policy . .
CitedRogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
CitedRegina v Eastleigh Borough Council, Ex parte Betts; In re Betts HL 27-Jul-1983
Mr Betts applied to Eastleigh for accommodation under the 1977 Act. They said that he had no local connection and referred his application to Blaby where the applicant and his family had formerly been living. Blaby accepted the referral and offered . .
CitedOzbek v Ispwich Borough Council CA 4-May-2006
The claimant applied to be housed as a homeless person. The authority sought to refer him to a different authority under s198. As an asylum seeker, he had been given assistance both in Portsmouth and Southampton before coming to Ipswich. He said . .
CitedSecurity Industry Authority v Stewart and Sansara Admn 17-Oct-2007
Various parties challenged the granting and withholding of licenses to operate as door supervisors (bouncers). The SIA regulated the grant of licences, and published criteria for their grant. It had been said that the inclusing of very minor . .
CitedOxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
CitedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
CitedGujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .
CitedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedSandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
CitedHesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .

Lists of cited by and citing cases may be incomplete.

Evidence, Administrative

Leading Case

Updated: 09 November 2021; Ref: scu.197780

Regina v Kilbourne: HL 1973

The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first group.
Held: The House considered what was the general character of relevant evidence. Lord Simon of Glaisdale: ‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.’
Lord Simon of Glaisdale pointed out that: ‘Circumstantial evidence . . works by cumulatively, in geometrical progression, eliminating other possibilities.’
In order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation.
Lord Hailsham of St Marylebone LC said: ‘A considerable part of the time taken up in argument was devoted to a consideration whether such evidence of similar incidents could be used against the accused to establish his guilt at all, and we examined the authorities in some depth from Makin v Attorney General for New South Wales [1894] AC 57, through Lord Sumner’s observations in Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694. I do not myself feel that the point really arises in the present case. Counsel for the respondent was in the end constrained to agree that all the evidence in this case was both admissible and relevant, and that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the ‘striking features of the resemblance’ between the acts alleged to have been committed in one count and those alleged to have been committed in the others and to say that this made it ‘more likely that John was telling the truth when he said that the appellant had behaved in the same way to him.’ In my view this was wholly correct. With the exception of one incident.
‘each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form’ [1972] 1 WLR 1365, 1369.
I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question. The word ‘corroboration’ by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.’

Lord Simon of Glaisdale, Lord Hailsham of St Marylebone LC
[1973] AC 729, [1973] 1 All ER 440, [1973] 2 WLR 254
England and Wales
Cited by:
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedRegina v Beck CACD 1982
The defendant complained that the judge had failed to direct the jury about the dangers of relying upon the evidence of witnesses who, though not co-defendants, had their own conflicting interests. They also said that corroborative evidence should . .
CitedRegina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .
AppliedRegina v Bagshaw, Holmes and Starkey CA 1984
The defendants were nurses at a mental hospital, charged with assaulting their patients. They complained that the judge had not given the full direction as to the dangers of relying upon the uncorroborated evidence of of unreliable witnesses, they . .
CitedO’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 . .
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 . .
CitedMitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.189888

Hui Chi-ming v The Queen: PC 5 Aug 1991

(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No witness saw the defendant hit the man, who was an innocent victim, or play any particular part in the assault. A was charged with murder, with three of the group. Two pleaded guilty to manslaughter and other was acquitted. The jury acquitted A of murder but convicted him of manslaughter. The defendant was later indicted for murder with another youth whose plea of guilty to manslaughter was accepted. The defendant refused an offer by the prosecution to accept a plea of guilty to manslaughter. He was prosecuted for murder as a party to a joint enterprise in which A had murdered the victim. The judge did not admit evidence of A’s acquittal of murder and conviction of manslaughter only. The defendant was convicted of murder and sentenced to death.
Held: The conviction or acquittal of the principle was both irrelevant and inadmissible. A conviction for an aider and abettor was not dependent upon a conviction of the principal offender. In general, an acquittal upon a different charge in an earlier trial is irrelevant to the issues before the court in the second trial.
Lord Griffiths said: ‘Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary.’
Lord Lowry: ‘a serious anomaly’ had occurred but the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process. There was ample evidence to support the defendant’s conviction. ‘Provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence.

Lord Griffiths, Lord Lowry
[1992] 1 AC 34, [1991] 3 All ER 897, [1991] 3 WLR 495, Gazette 02-Oct-1992, [1991] UKPC 29, (1991) 94 Cr App R 236
Bailii, Bailii
England and Wales
Citing:
ExplainedChan Wing-Siu v The Queen PC 21-Jun-1984
The appellant and co-accused were charged with murder. They said they had gone to meet the deceased to collect a debt, but had been attacked with a knife by the deceased. Two of the three had knives and knew of the other knife.
Held: All were . .
ApprovedRegina v Hyde, Sussex, Collins CACD 1990
Lord Lane CJ restated the principle underlying the responsibility of a secondary partner in a joint enterprise: ‘If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless . .
CitedRegina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .
CitedDirector of Public Prosecutions v Humphrys HL 1977
Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. . .

Cited by:
CitedRegina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
CitedHasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedPetch and Coleman v Regina CACD 13-Jul-2005
The defendants appealed their convictions for murder, saying that a co-defendant, have been captured after fleeing the country had later been treated more leniently, a plea of manslaughter having been accepted.
Held: In order to substitute . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
CitedRegina v Robinson CACD 23-Mar-2011
Earlier Acquittal not for mention on retrial
The defendant appealed against several convictions for serious ‘historic’ sex abuse. He said that there was insufficient evidence before the court to decide that the complainant had been under 14 at the time, and that any consent was vitiated. He . .
CitedJogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.179868

Nocton 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 and claimed damages. At the trial the action was treated as action in the tort of deceit and the claim was dismissed for want of proof of actual dishonesty on the part of the solicitor. The Court of Appeal reversed that decision on the facts. It gave judgment in favour of the client.
Held: Fraud in the Chancery Division should be understood as an allegation of equitable (constructive) fraud, not fraud as understood by the common law (sometimes called express fraud). As to the duties of a solicitor to his client they are: 1. A solicitor stands in a fiduciary relationship with his client. 2. A solicitor who enters into a financial transaction with his client is under a fiduciary duty, when advising his client, to make full disclosure of all relevant facts known to him. 3. Liability for breach of fiduciary duty is not dependent on proof of deceit or negligence. Equity imposes duties in special relationships above and beyond the minimal legal duties to be honest and to be careful. Fiduciary duties rest on the idea of trust and of conduct offensive to conscience. 4. The equitable remedies available for breach of fiduciary duty are ‘more elastic’ than the sanction of damages attached to common law fraud and negligence.
In a case of fraudulent misrepresentation: ‘No-one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction.’ From the beginning the courts of equity have regarded themselves as courts of conscience. When courts of equity referred to something as ‘fraud’ it might have nothing to do with deceit, but may refer to unconscionable conduct.
Viscount Haldane LC referred to the ‘more elastic’ remedies of the Court of Chancery than those of the common law courts. He said: ‘My lords, it is known that in cases of actual fraud the Courts of Chancery and of Common Law exercised a concurrent jurisdiction from the earliest times. For some of these cases the greater freedom which, in early days, the Court of Chancery exercised in admitting the testimony of parties to the proceedings made it a more suitable tribunal. Moreover, its remedies were more elastic. Operating in personam as a court of conscience it could order the defendant, not, indeed, in those days, to pay damages as such, but to make restitution, or to compensate the plaintiff by putting him in as good a position pecuniarily as that in which he was before the injury.
But in addition to this concurrent jurisdiction, the Court of Chancery exercised an exclusive jurisdiction in cases which although classified in that Court as cases of fraud, yet did not necessarily import the element of dolus malus. The Court took upon itself to prevent a man from acting against the dictates of conscience as defined by the Court, and to grant injunctions in anticipation of injury, as well as relief where injury had been done. Common instances of this exclusive jurisdiction are cases arising out of breach of duty by a person standing in a fiduciary relation, such as the solicitor to the client, illustrated by Lord Hardwick’s judgment in Chesterfield v Jansen (2 Ves Sen 125).’
‘In Chancery, the term ‘fraud’ thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanction.’
As to constructive fraud and the nature of equity, Viscount Haldane said: ‘A man may misconceive the extent of the obligation which a Court of Equity imposes on him. His fault is that he has violated, however innocently because of his ignorance, an obligation which he must be taken by the Court to have known and his conduct has in that sense always been called fraudulent, even in such a case as technical fraud on a power. It was thus that the expression ‘constructive fraud’ came into existence. The trustee who purchases the trust estate, the solicitor who makes a bargain with his client that cannot stand, have all for several centuries run the risk of the word fraudulent being applied to them. What it really means in this connection is, not moral fraud in the ordinary sense, but breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a Court of conscience.’
A Court of Equity has always assumed jurisdiction to scrutinize the action of a solicitor who has had financial transactions with his client: ‘It did not matter that the client would have had a remedy in damages for breach of contract. Courts of Equity had jurisdiction to direct accounts to be taken and in proper cases to order the solicitor to replace property improperly acquired from the client, or to make compensation if he had lost it by acting in breach of a duty which arose out of his confidential relationship to the man who had trusted him.’
Since the Judicature Acts, the Courts had been empowered to give both common law and equitable remedies: ‘This action ought properly to have been treated as one in which the plaintiff had made out a claim for compensation either for loss arising from misrepresentation made in breach of fiduciary duty or for breach of contract to exercise due care and skill.
. . The proper mode of giving relief might have been to order Mr Nocton to restore to the mortgage security what he had procured to be taken out of it in addition to making good the amount of interest lost by what he did. A measure of damages may not always be the same as in an action of deceit or for negligence. But in this case the question is of form only and is not one which it is necessary to decide. I am not sure that such an order would have been more merciful to Mr Nocton than the order for an inquiry as to damages which was actually made. At all events Mr Nocton’s advisers did not at any time object or ask for the other alternative and it is too late to ask for it now.’

Lord Dunedin, Lord Shaw, Viscount Haldane LC
[1914] AC 932
England and Wales
Citing:
CitedDerry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .
CitedBurdick v Garrick HL 1870
In the courts of Chancery, the statute of limitations would not apply when the person in a confidential relationship had got the property into his hands. A court presumes against the party against whom relief is sought that he has made that profit . .

Cited by:
CitedMutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
CitedAssicurazioni 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. . .
CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedAltonwood Ltd v Crystal Palace FC (2000) Ltd ChD 7-Mar-2005
The landlord claimed arrears of rent and other payments due under the lease of the football ground occupied by the club. A licence had been granted for the accomodation to be shared with Wimbledon Football Club. The rent varied with the gate . .
CitedCrawford v Financial Institutions Services Ltd PC 2-Nov-2005
(Jamaica) The government had intervened in banking institutions under the control of the appellant. Subsequently orders had been made against him for compensation in respect of loans made negligently or otherwise than in accordance with good banking . .
CitedNational Australia Bank Ltd v Bond Brewing Holdings Ltd 1991
(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking.
Held: If it had power to award . .
CitedTarget Holdings Ltd v Redferns and Another CA 24-Nov-1993
Solicitors were liable to mortgagees for mortgage monies which had been out by them paid in advance of the completion of the purchase which would allow the mortgagee’s loan to be charged. The basic liability of a trustee in breach of trust was not . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
ExplainedRobinson v National Bank of Scotland HL 10-Apr-1916
The pursuer claimed for false and fraudulent misrepresentation againt his bankers.
Held: A duty of care is not only owed in cases of fiduciary relationship in the narrow sense of relationships which had been recognised by the court of Chancery . .
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other, Contract, Equity, Legal Professions

Leading Case

Updated: 02 November 2021; Ref: scu.183324

Rhesa Shipping Co SA v Edmonds (The Popi M): HL 16 May 1985

The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was caused by a peril of the sea or alternatively by crew negligence. The suggested peril of the sea was a moving submerged object, i.e. a submarine. The underwriters contended that the vessel was not seaworthy. More specifically, the underwriters advanced a mechanism for unseaworthiness through wear and tear, based on expert metallurgical evidence. The judge rejected that theory. He also rejected the owners’ argument that there had been crew negligence. That left the possibilities that the vessel was in some other way unseaworthy or that it collided with a submarine. There was no clear basis upon for the court to say that burden of proof had been discharged.
Held: The burden of proving this, on a balance of probabilities, lay on the plaintiffs. A trial judge is not bound to accept the evidence of one side or the other: there remains the possibility of deciding the case on the burden of proof. The court should avoid deciding cases on a balance of improbabilities. It was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. The concept of proof on a balance of probabilities had to be applied with common sense. It required a judge, before he found a particular event occurred, to be satisfied on the evidence that it was more likely to have occurred than not.
(1) where the cause of a past event is in issue and two or more competing causes are advanced the burden of proving his case on causation remains on the claimant throughout, and though the defendant can advance a competing cause there is no obligation on him to prove this case.
(2) Even after a prolonged enquiry with a mass of expert evidence, it is open to the courts to conclude that causation remains in doubt and the result will be that the claimant has failed to discharge the burden of proof.
(3) Therefore the effect of this decision is that where the court considers one theory as improbable but also rules out all other theories the court should not treat the improbable theory as the likely cause of the event.
Lord Brandon of Oakbrook said: ‘the appeal does not raise any question of law, except possibly the question what is meant by proof of a case ‘on a balance of probabilities’. Nor do underwriters challenge . . any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.’
As to the Sherlock Holmes fallacy that ‘once you have eliminated the impossible, whatever remains, however improbable, is the truth ‘: ‘In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a Judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasize as being of great importance, namely, that the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the Judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.’

Lord Brandon of Oakbrook
[1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15
Bailii
England and Wales
Citing:
At First InstanceThe Popi M; Rhesa Shipping Co SA v Edmonds 1983
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. . .
ApprovedLa Compania Martiartu v Royal Exchange Assurance Corporation CA 1923
The court found, on limited evidence, that the ship in respect of which her owners had claimed for a total loss of perils by sea, had in fact been scuttled with the connivance of those owners.
Scrutton LJ said: ‘This view renders it . .

Cited by:
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
CitedMoiz Ahmed Siddiqui, Ishrat Siddiqui/Bhajan Singh Sohanpal v Council of the London Borough of Hillingdon TCC 15-Apr-2003
The claimants sought damages for cracks in their house caused by the roots of trees on the defendant’s land.
Held: The claimants had failed to establish by evidence that the tree roots were the cause of the damage. The claim failed. . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedExel Logistics Ltd v Curran and others CA 30-Sep-2004
The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
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 . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedCarisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedKastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
CitedHill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
ExplainedIde v ATB Sales Ltd and Another CA 28-Apr-2008
Each appellant challenged how the judge had decided between alternative proofs of causation of the respective loss. In Ide, the claimant asserted a fault in a cycle handlebar, and in Lexus, the claimant asserted that it caught fire whilst . .
CitedFosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
CitedPiper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
CitedNulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
CitedMilton Keynes Borough Council v Nulty and Others TCC 3-Nov-2011
There had been two fires at depots owned by the claimants. They brought proceedings against an employee, but his insurers repudiated liability saying that they had not been promptly notfied of the claim.
Held: The first fire was caused either . .
CitedLove v Halfords Ltd QBD 8-Apr-2014
The claimant had purchased a new bicycle from the defendants who also maintained it. Several months later, the steerer tube broke causing an accident and severe injury. The cycle had been finally assembled by the defendant after importation, but . .
CitedThe Worshipful Company of Grocers v Keltbray Group Holdings Ltd and Another QBD 19-May-2016
Allegation that a collapse in a nearby building caused a water leak in the claimant’s nearby building.
Held: the effects of the collapse did not cause the major cracking at Grocers’ Hall which was reported on following the flood. The Grocers . .

Lists of cited by and citing cases may be incomplete.

Evidence, Damages, Insurance, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.184697

Hornal v Neuberger Products Ltd: CA 1956

Proof Standard for Misrepresentation

The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of probabilities. It was for the plaintiff to establish that the defendant had the intent required for the tort asserted. In practice more convincing evidence will be required to establish fraud than any other types of allegation.
Hodson LJ said: ‘Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.’
Morris LJ said: ‘It is, I think, clear from the authorities that a difference of approach in civil cases has been recognized. Many judicial utterances show this. The phrase ‘balance of probabilities’ is often employed as a convenient phrase to express the basis upon which civil issues are decided. It may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities on these topics. But perhaps they illustrate that ‘the life of the law is not logic but experience.’ In some criminal cases liberty may be involved; in some it may not. In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. Good name in man or woman is ‘the immediate jewel of their souls.’
But in truth no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions. Particularly is this so if the words which are used to define that approach are the servants but not the masters of meaning. Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning LJ when in his judgment in Bater v. Bater he spoke of a ‘degree of probability which is commensurate with the occasion’ and of ‘a degree of probability which is proportionate to the subject-matter.’
In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. There will be reluctance to rob any man of his good name : there will also be reluctance to make any man pay what is not due or to make any man liable who is not . .’

Morris LJ, Denning LJ, Hodson LJ
[1957] 1 QB 247, [1956] 3 All ER 970
England and Wales
Citing:
CitedBater v Bater CA 1950
The trial judge had said that the petitioner, who alleged cruelty by her husband, must prove her case beyond reasonable doubt.
Held: There had been no misdirection. Each member of the court had found difficulty in distinguishing between the . .

Cited by:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
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 . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedBlyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedSix Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
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 . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedThe Solicitor for the Affairs of HM Treasury v Doveton and Another ChD 13-Nov-2008
The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred . .
CitedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
lindsay_oloughnaneQBD11
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
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 . .

Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.196916

A and J Inglis v Buttery and Co: HL 1878

The presumption is that a contract document expresses all the terms in the contract with the effect that the court will only look to the document ‘in determining what the contract really was and what it really meant. Lord Blackburn preferred the dissenting opinion of Lord Gifford.
Lord Blackburn observed that: ‘Where parties agree to embody, and do actually embody, their contract in a formal written deed, then in determining what the contract really was and really meant, a court must look to the formal deed and to that deed alone. That is only carrying out the will of the parties’

Lord Blackburn
(1878) 3 AC 552
England and Wales
Citing:
Appeal fromA and J Inglis v Buttery and Co CA 1877
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts ‘whether they be clear and . .

Cited by:
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .

Lists of cited by and citing cases may be incomplete.

Contract, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.374672

Waugh v British Railways Board: HL 12 Jul 1979

No Litigation Privilege without Dominant Purpose

An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation privilege. There is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court. The report undoubtedly contained material collected by or on behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be shown that this was its dominant purpose the document did not attract litigation privilege.
Legal advice privilege has to be distinguished from litigation privilege. The need to make that distinction was sometimes overlooked: ‘It is for the party refusing disclosure to establish his right to refuse. It may well be that in some cases where that right has in the past been upheld the courts have failed to keep clear the distinction between (a) communications between client and legal adviser, and (b) communications between the client and third parties, made (as the Law Reform Committee put it) ‘for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”
A ‘dominant purpose’ test was the best method of resolving the competing principles that on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege.

Lord Simon, Lord Edmund Davies, Lord Wilberforce
[1980] AC 521, [1979] UKHL 2, [1979] 3 WLR 150, [1979] 2 All ER 1169, [1979] UKHL TC – 53 – 185
Bailii
England and Wales
Cited by:
ApprovedRe Highgrade Traders CA 1984
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect. . .
CitedUnited States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
CitedRe Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedWright v Sullivan CA 27-May-2005
The claimant had appointed a clinical case manager. She appealed an order requiring the case manager to report also to the court.
Held: The case manager’s duties were purely to the claimant, and an order requiring that manager to report also . .
CitedBritish Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
DistinguishedSugar v The British Broadcasting Commission and Another (No 2) CA 23-Jun-2010
The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed . .
CitedSugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.188693

Greenwood v Fitt: 1961

greenwood_fittBC1961

(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of that conversation was itself admitted.

[1961] 29 DLR 1
Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Leading Case

Updated: 01 November 2021; Ref: scu.182474

Prudential Assurance Co Ltd v Prudential Insurance Co of America: ChD 20 Dec 2002

The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of others. The protection from repetition before a court of admissions made ‘without prejudice’ should be limited to those occasions where the public interests underlying the rule were plainly applicable. The ‘without prejudice’ rule must be applied carefully and only in cases to which the public interest which underlies the rule requires it to be applied: ‘Article 10 [ECHR, s.12(1) of the Human Rights Act 1998] confers on everyone the right of freedom to expression, including the right ‘to receive and impart information and ideas without interference by public authority and regardless of frontiers’. But that right is subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the rights of others. Prima facie, therefore, the right is engaged by the ‘without prejudice’ rule but justified by the public interests which underlie it. But what this part of the case does is emphasise the need to apply the ‘without prejudice’ rule with restraint and only in cases to which the public interests underlying the rule are plainly applicable.’

Sir Andrew Morritt VC
Times 02-Jan-2003, [2002] EWHC 2809
Bailii
European Convention on Human Rights 10
England and Wales
Cited by:
Appeal fromPrudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
CitedWilkinson v West Coast Capital and others ChD 22-Jul-2005
A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The . .
CitedFramlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.178694

Desmond v Bower: CA 7 Jul 2009

Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
Held: Applying O’Brien, and respecting that this was a matter of case management where an appeal court should only intervene with great reluctance, the judge’s decision had been wrong. The defendant had given evidence to say that he did not carry a grudge. The recording was required, and the summons should be issued: ‘the prejudice to Mr Desmond of the admission of a short, taped telephone conversation with him, in circumstances in which the judge will no doubt permit him, (if on reflection he wishes) to return to the witness box and deal with the matter, is small, whereas the risk that, without access to the tape, the jury might reach a false conclusion about the existence of a grudge and the genesis of the article relating to Pentagon is substantial.’

Rix LJ, Wilson LJ
[2009] EWCA Civ 667, Times 04-Aug-2009, [2010] EMLR 5
Bailii
England and Wales
Citing:
CitedO’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 . .
CitedG v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:
See AlsoDesmond v Bower CA 20-Jul-2009
interlocutory appeal . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice, Evidence

Updated: 02 November 2021; Ref: scu.361448

Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co: HL 1991

The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax liability of the taxpayer, their former employee. The notice was given with the consent of a commissioner, who, under section 20(7), was to give such consent only upon being satisfied in all the circumstances that the inspector was justified in proceeding under the section. The Revenue deposed that the information, which had led it to believe that documents in T C Coombs’ possession might contain information relevant to the taxpayer’s tax liability, could not be disclosed on grounds of confidentiality, but had been fully laid before the commissioner.
Held: The effect of the presumption that subordinate legislation, or an administrative act, is lawful until it has been pronounced to be unlawful, is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid.
Lord Lowry discussed a party’s silence: ‘In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified.’
As to the test to be satisfied by a party, he said: ‘The case for the validity of the second notice, or any section 20(3) notice, is supported by the presumption of regularity, which is strong in relation to the function of the commissioner under section 20(7). He is an independent person entrusted by Parliament with the duty of supervising the exercise of the intrusive power conferred by section 20(3) and ‘in the absence of any proof the contrary’ credit ought to be given to public officers, who have acted prima facie within the limits of their authority, for having done so with honesty and discretion: Earl of Derby v Bury Improvement Commissioners (1869) LR 4 Exch 222, 226. The commissioner must be taken to be satisfied that the inspector was justified in proceeding under section 20 and hence that the inspector held, and reasonably held, the opinion required by section 20(3). The presumption that that opinion was reasonable and that the commissioner was right to be satisfied can be displaced only by evidence showing that at the time of giving the second notice the inspector could not reasonably have held that opinion. In order to decide whether the applicants succeed in this task, the court must consider all the evidence on both sides and all the available facts, one of which is that the commissioner, having heard an application, consented to the giving of the notice.’
Lord Mackay of Clashfern LC said: ‘The obligation on the commissioner to consider all the circumstances implies a duty on the officer of the Inland Revenue who appears before the commissioner to lay before the commissioner all the information he has about the relevant circumstances including any which might be unfavourable to the giving of the notice.’

Lord Mackay of Clashfern LC, Lord Lowry, Lord Jauncey of Tullichettle
[1991] 2 AC 283, [1991] 2 WLR 682, [1991] 3 All ER 623
Taxes Management Act 1970 20
England and Wales
Citing:
Appeal fromRegina v Inland Revenue Commissioners, Ex parte T C Coombs and Co CA 1989
Lord Tenterden CJ said: ‘It has been carried further in the argument to-day, for it has been urged that the non-appearance of the prosecutor does not necessarily induce the conclusion of a consciousness at that time, that when the prosecution was . .

Cited by:
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedWisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
CitedRaja v Van Hoogstraten ChD 19-Dec-2005
Damages were claimed after claimant alleged involvement by the defendant in the murder of the deceased. The defendant had been tried and acquitted of murder and manslaughter, but the allegation was now pursued. The defendant had since failed to . .
CitedPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedGohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
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.

Administrative, Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.187067

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice, Construction

Leading Case

Updated: 01 November 2021; Ref: scu.182472

London Borough of Richmond v B and Others: FD 12 Nov 2010

Caution in Use of Hair Samples to Test Alcohol

The court considered the extent to which reliance could be placed on tests of hair samples for alcohol in care proceedings.
Held: Such evidence should be used with caution: ‘(i) When used, hair tests should be used only as part of the evidential picture. Of course, at the very high levels which can be found (multiples of the agreed cut off levels) such results might form a significant part of the evidential picture. Subject to this however, both Professor Pragst and Mr O’Sullivan agreed that ‘You cannot put everything on the hair test’; in other words that the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence. I sensed considerable unease on the part of Professor Pragst at the prospect of the results of the tests being used, other than merely as one part of the evidence, to justify significant child care decisions;
(ii) Because of the respective strengths and weaknesses of each of the tests (for EtG and FAEEs), if hair tests are going to be undertaken, both tests should be used. Research has shown that the tests can produce conflicting results;
(iii) The results produced by the tests should be used only for the purposes of determining whether they are or are not consistent with excessive alcohol consumption by use of the cut off levels referred to in paragraph 20 above. If they are not – in other words if the concentration found is below the generally recognised cut-off levels – the results are consistent with (indicative of) abstinence/social drinking. If the results are above the generally recognised cut-off levels, they are consistent with (indicative of) excessive alcohol consumption. Further, as referred to earlier in this judgment, at these cut off levels the research evidence suggests that 10% of the results will be false positives. The tests cannot establish whether a person has been abstinent both because the non-detection of either EtG or FAEEs does not mean that the subject has not consumed alcohol and also because the detection of either at volumes below the cut off levels referred to above below does not mean that they have. Finally, on this point, the tests are not designed to establish abstinence or social drinking;
(iv) The current peer agreed cut off levels for both EtG and FAEEs are for the proximal 3 cm segment of hair. Whilst the testing of 1 cm segments (of the proximal 3 cm segment of hair) might have some value for the purpose of looking at trends (and also at very high levels referred to in (i) above), no cut off levels have been established or generally agreed for 1 cm segments nor, as referred to earlier in this judgment, is there sufficient published data on testing such segments to enable the validity of such tests to be established. Accordingly, any evidence based on the testing of 1 cm segments is unlikely to be sufficient to support conclusions as to the level of alcohol consumption;
(v) Notwithstanding what is set out in the Consensus, the witnesses in these proceedings agreed that, when tests demonstrate levels of EtG and FAEEs above the cut off levels referred to in paragraph 20, the results can be said to be ‘consistent’ with excessive consumption over the relevant period. When a test demonstrates a lower level it is ‘consistent’ with abstinence/social drinking.
(vi) As referred to in (iii) above, the current state of research means that there is no peer agreed cut off level for the line between abstinence and social drinking. In the absence of any such peer reviewed and agreed cut off, any court would, in my view, need specific justification before accepting any such evidence.’

Moylan J
[2010] EWHC 2903 (Fam), (2011) 118 BMLR 65, [2011] Fam Law 131, [2011] 1 FCR 401, [2011] 1 FLR 1345
Bailii
England and Wales
Citing:
CitedRe F (Children) (DNA Evidence) FD 20-Dec-2007
The court considered the difficulties which can arise from the use of DNA testing in family proceedings. Experts need to bear in mind that their reports should be expressed in terms which can be understood by lay people and in terms which explain . .
CitedRegina v Weller CACD 4-Mar-2010
The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.430393

Chartbrook Ltd v Persimmon Homes Ltd and Others: HL 1 Jul 2009

Mutual Knowledge admissible to construe contract

The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: The appeal succeeded. There were difficulties in construing the contract. The contract came to be read after a period of sharp falls in value which were not reflected comfortably in the words used, and the phrase ‘additional residential payment’ made no particular commercial sense. It was necessary for it to be clear first that the language had gone awry, and second what a reasonable bystander would have understood the parties to have meant. Those conditions being satisfied, the appeal was allowed.
Evidence of negotiations can be given to establish that ‘a fact which may be relevant as background was known to the parties’. It was also argued that the course pre-contractual negotiations should be allowed and taken into account in construing the contract. There was however no clear case shown for departing from this exclusionary rule or changing what is now settled practice.
The court should consider ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.’
Lord Hoffmann noted that prior negotiations might be relevant for purposes other than the drawing of inferences about what the contract means.
As to the cases of East and KPMG, he said: ‘What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In my opinion, both of these requirements are satisfied.’
Lord Hoffmann said: ‘words used as labels are seldom arbitrary’
Lord Hoffmann (obiter) where the document of which rectification is sought is a written contract, the relevant test of intention is purely ‘objective’ – meaning by this what a reasonable observer with knowledge of the background facts and prior communications between the parties would have thought their common intention at the time of contracting to be.

Lord Hope of Craighead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond
[2009] UKHL 38, Times 02-Jul-2009, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P and CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223
Bailii, WLRD, HL
England and Wales
Citing:
At first instanceChartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Appeal fromChartbrook Ltd v Persimmon Homes Ltd CA 12-Mar-2008
Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to . .
CitedA and J Inglis v Buttery and Co CA 1877
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts ‘whether they be clear and . .
CitedRiver Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
CitedPrenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
CitedBirmingham City Council v Walker HL 16-May-2007
The tenant was the son of the former tenant. The tenancy had originally been in the ownership of his father and his mother. The father died in 1969, when the tenancy not yet a secure tenancy. On the mother’s death, the council argued that the first . .
CitedA and J Inglis v Buttery and Co HL 1878
The presumption is that a contract document expresses all the terms in the contract with the effect that the court will only look to the document ‘in determining what the contract really was and what it really meant. Lord Blackburn preferred the . .
CitedKPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
CitedAlexiou and Another v Campbell PC 26-Feb-2007
(the Bahamas) . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
CitedEast v Pantiles Plant Hire Ltd CA 1981
The court considered the circumstances under which rectification could properly be ordered in respect of a deed. Brightman LJ said: ‘It is clear on the authorities that a mistake in a written instrument can, in certain limited circumstances, be . .
CitedJumbo King Ltd v Faithful Properties Ltd 2-Dec-1999
(Court of Final Appeal of Hong Kong) . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedCountess of Rutland’s Case 1604
Popham CJ said: ‘it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the . .
CitedHomburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
CitedBratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedPartenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
CitedShore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
CitedRegina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
CitedAntaios 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 . .
CitedStevens and others v Bell and others CA 20-May-2002
Interpretation of the trustees’ powers with respect to surplus under the Airways Pension Scheme
Orse British Airways Pension Trustees Ltd v British Airways Plc . .

Cited by:
CitedSigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
CitedWestvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedHorwood and Others v Land of Leather Ltd and Others ComC 18-Mar-2010
The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an . .
CitedPink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
CitedAshcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
CitedWickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedFarstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
CitedAutoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedCampbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
CitedAJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
CitedPink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
CitedSugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
CitedLloyds TSB Bank Plc v Crowborough Properties Ltd and Others CA 12-Feb-2013
The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order. . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Not applicableJump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
CitedBNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Not FollowedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
CitedBarnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
CitedThe Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Evidence, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.368925

Rush and Tompkins Ltd v Greater London Council and Another: HL 1988

Use of ‘Without Prejudice Save as to Costs”

A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the client, the respondent. The claim was compromised but without disclosing the detail underlying the sum agreed. The sub-contractor then claimed an additional sum, and sought disclosure of documents which had passed between the parties. The appellants claimed the protection of the ‘without prejudice’ rule.
Held: The Court will not permit the phrase to be used to exclude an act of bankruptcy or to suppress a threat if an offer is not accepted. The exception for offers expressly made ‘without prejudice except as to costs’ was recognised to be based on an express or implied agreement between the parties.
Lord Griffiths said: ‘The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence ‘without prejudice’ to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission. I cannot therefore agree with the Court of Appeal that the problem in the present case should be resolved by a linguistic approach to the meaning of the phrase ‘ without prejudice ‘. I believe that the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation.’
However: ‘These cases show that the rule is not absolute and resort may be had to the ‘without prejudice’ material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examination of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement.’
Lord Griffiths said: ‘The ‘without prejudice’ rule is ‘a rule governing the admissibility of evidence founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. To try to identify admissions and withhold protection from the rest of without prejudice communications would be contrary to the objective of giving protection to the parties ‘to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts.’

Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
[1989] AC 1280, [1988] UKHL 7, [1988] 3 All ER 737
Bailii
England and Wales
Citing:
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 . .
CitedWaldridge v Kennison 1794
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case. . .
CitedTomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
CitedWalker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
CitedRabin v Mendoza and Co CA 1954
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be . .
CitedStretton v Stubbs Ltd CA 28-Feb-1905
(1905) The plaintiff, an artist had a judgment against him by a picture frame maker. It had been entered by consent under an agreement with the plaintiff’s solicitor that no publicity should be given to the result of the action. Nevertheless, the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedSchetky v Cochrane and the Union Funding Co 1918
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the . .
CitedDerco Industries Ltd v A R Grimwood Ltd, Insurance Corporation of British Columbia and PLC Construction Ltd 1985
(British Columbia) Lambert J.A said about the without prejudice rule: ‘to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion . .
CitedCompagnie Financiere du Pacifique v Peruvian Guano Co CA 1882
Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also . .
CitedI Waxman and Sons Ltd v Texaco Canada Ltd 2-Jan-1968
(Court of Appeal of Ontario) The court approved the decision below. . .
CitedI Waxman and Sons Ltd v Texaco Canada Ltd 1968
(Ontario High Court) Fraser J said: ‘I am of opinion that in this jurisdiction a party to a correspondence within the ‘without prejudice’ privilege is, generally speaking, protected from being required to disclose it on discovery or at trial in . .
CitedChocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd 1978
Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, . .

Cited by:
CitedPrudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
CitedIn re a Company (No 007466 of 2003) ChD 19-Jan-2004
The company had published and filed its accounts, but sought to file revised accounts. The Registrar of companies refused permission, and the company asked the court to require the registrar to allow it by virtue of the court’s inherent . .
CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
CitedBradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedFramlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
CitedJamie v Management Solution Partners Ltd EAT 31-Jan-2006
The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to . .
CitedWilliams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedBrodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedBerkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .
CitedV v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .

Lists of cited by and citing cases may be incomplete.

Evidence, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.186458

In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening): CA 14 May 2004

In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the Cannings case.
Held: The appeals failed. It was wrong to diminish the difference in standards of proof between civil and criminal cases. ‘The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. ‘There were significant differences between care and criminal cases: more evidence would be admitted, and the proceedings were inquisitorial rather than adversarial. ‘it by no means follows that an acquittal on a criminal charge or a successful appeal would lead to the absolution of the parent or carer in family or civil proceedings.’
The court urged caution on those asked to find abuse: ‘(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal;
(ii) Recurrence is not in itself probative;
(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause;
(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice;
(v) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

Dame Elizabeth Butler-Sloss P, Lord Justice Thorpe, And Lord Justice Mantell
[2004] EWCA Civ 567, Times 27-May-2004, Gazette 03-Jun-2004, [2005] Fam 134, [2004] Fam Law 565, [2004] 2 FCR 257, [2004] 3 WLR 753, [2004] 2 FLR 263
Bailii
England and Wales
Citing:
CitedRegina v Angela Cannings CACD 19-Jan-2004
The defendant had been convicted of murdering her children. The substance of the evidence against her was that on a medical expert. His evidence was disputed and later doubted.
Held: Appeal allowed. In general courts should be careful to . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedB v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
DoubtedRe ET (Serious Injuries: Standard of Proof) FD 2003
The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed . .
CitedRe: CB and JB (care proceedings: guidelines) FD 8-Apr-1998
The court gave guidelines for procedures at preliminary hearings in care cases, and as to psychiatric evidence: ‘(iv) Evidence of propensity or psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .

Cited by:
CitedA Local Authority v S and W and T By her Guardian FD 27-May-2004
A child had died. The father was accused and acquitted of murder by way of shaken baby syndrome. The local authority persisted with an application for care orders for the other children.
Held: ‘I do not claim to have divined truth. I have . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedLancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
CitedIn re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.196767

In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964

Husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The court asked what was required to displace the presumption that the husband, the older of the two, had died first.
Held: The court described the standards of proof when serious allegations are made in civil courts: ‘It seems to me that in civil cases it is not so much that a different standard of proof is required in different circumstances varying according to the gravity of the issue, but, as Morris LJ says, the gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. This is perhaps a somewhat academic distinction and the practical result is stated by Denning LJ: ‘The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law.’ In this case the issue is whether or not the wife feloniously killed the husband. There can hardly be a graver issue than that, and its gravity weighs very heavily against establishing that such a killing took place, even for the purpose of deciding a civil issue.’ (Ungoed-Thomas J)

Ungoed-Thomas J
[1964] 1 WLR 451
England and Wales
Cited by:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Citedre G (A Child) CA 8-Apr-2014
McFarlane LJ said: ‘In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then . .

Lists of cited by and citing cases may be incomplete.

Evidence, Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.196915

Blyth v Blyth: HL 1966

The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone as the case may be’
Lord Pearson said: ‘The phrase ‘is satisfied’ means, in my view, simply ‘makes up its mind’; the court on the evidence comes to a conclusion which, in conjunction with other conclusions, will lead to the judicial decision.’

Lord Denning
[1966] AC 643
Matrimonial Causes Act 1950 4(2)
England and Wales
Citing:
CitedBater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
CitedHornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .

Cited by:
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Lists of cited by and citing cases may be incomplete.

Evidence, Family

Leading Case

Updated: 01 November 2021; Ref: scu.237706

Bank Mellat v Her Majesty’s Treasury (No 1): SC 19 Jun 2013

Closed Material before Supreme Court

Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it was possible for the Supreme Court to use any such procedure, and if so, how and whether such a procedure should be adopted in this case.
Held: (Majority, Hope, Kerr and Reed LL dissenting) It was possible for the Supreme Court to adopt a closed material procedure on an appeal, and that it was appropriate for such a procedure in this case. The fact that any case might be appealed to the Supreme court implied that it could hear a case based in part on material not disclosed to all parties.
Lord Neuberger PJSC described the principle of open justice as ‘fundamental to the dispensation of justice in a modern, democratic society’ . . ‘However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum – see, for instance A v Independent News and Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged, and where commercially valuable secret information is in issue.’

Lord Neuberger, President, Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 38, UKSC 2011/0040, [2013] WLR(D) 244, [2014] AC 700, [2013] 4 All ER 495, [2013] 3 WLR 179, [2013] Lloyds Rep FC 580
Bailii, SC Summary, SC, WLRD, Bailii Summary
Financial Restrictions (Iran) Order 2009, Counter-Terrorism Act 2008, Constitutional Reform Act 2005 40(2)
England and Wales
Citing:
At first instanceBank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Appeal fromBank Mellat v HM Treasury CA 13-Jan-2011
Under the 2009 Order, the appellant Bank’s UK operations had been shut down. It appealed against the Order, but the respondent had brought evidence, closed save to the respondent, and the order had been confirmed.
Held: The bank’s appeal . .
CitedRe D (Minors) (Adoption Reports: Confidentiality) HL 1-Sep-1995
The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
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: . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedA and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
CitedA and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
CitedSecretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. 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 . .
CitedJIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
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 . .
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 . .
CitedAT v Secretary of State for The Home Department CA 7-Feb-2012
The claimant challenged a non-derogation control order. . .

Cited by:
See AlsoBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedMX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
CitedJP Whitter (Water Well Engineers) Ltd v Revenue and Customs SC 13-Jun-2018
The taxpayers registration under the Construction Industry Scheme had been withdrawn. The Court was now asked whether HMRC are obliged, or at least entitled, to take into account the impact on the taxpayer’s business of the cancellation of its . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.510914

Jameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe SPRL: QBD 20 Jan 2004

It is almost inevitable that in a Reynolds privilege case to be tried by jury there will be presented to them a list of questions, sometimes no doubt formidably long. The object is to enable the judge to have the factual matrix upon which to make his value judgments and the ultimate decision on the defence of privilege.
Eady J discussed the application of the Bonnick rule: ‘Where defamatory words are genuinely ambiguous, in the sense that they may readily convey different meanings to different ”ordinary reasonable readers’ then the court may take into account such other meaning or meanings when considering privilege . . If a journalist genuinely did not appreciate that the words could carry a certain defamatory implication, he could hardly be criticised for not checking it out . . In determining whether it was reasonable or responsible not to have made further pre-publication checks, it might well be relevant to consider how the journalist understood the allegations he was making and, if he genuinely thought the words bore no defamatory imputation at all, it would be difficult to criticise him for not addressing such a meaning for the purpose of checks or (say) giving an opportunity to comment upon it.’

Mr Justice Eady
[2004] EWHC 37 (QB), [2004] EMLR 11
Bailii, Bailii
England and Wales
Citing:
CitedReynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
CitedChase 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 . .
See AlsoJameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe Sprl (No 1) CA 26-Nov-2003
The court considered the levels of meaning in an article falsely connecting the claimant with terrorist activity: ‘Once it is recognised that the article may be asserting no more than that in one way or another the respondents may unwittingly have . .
See AlsoJameel, Abdul Latif Jameel Company Ltd v Wall St Journal Europe SPRL QBD 7-Oct-2003
The court was asked to rule on two remaining pre-trial issues in this defamation claim. ‘namely, (1) an issue of meaning and (2) questions on the admissibility and relevance of eleven witness statements served on the Claimants’ behalf, and . .
See AlsoJameel and Another v The Wall Street Journal Europe Sprl QBD 5-Dec-2003
The defendant sought an order dismissing the defamation claim brought against it, saying that the rule that a defamation claim might be brought without proof of damage to reputation could not survive the introduction of the 1998 Act. . .

Cited by:
CitedGeorge Galloway MP v Telegraph Group Ltd QBD 2-Dec-2004
The claimant MP alleged defamation in articles by the defendant newspaper. They claimed to have found papers in Iraqi government offices after the invasion of Iraq which implicated the claimant. The claimant said the allegations were grossly . .
See AlsoJameel, Abdul Latif Jameel Company Limited v The Wall Street Journal Europe Sprl (No 1) CA 26-Nov-2003
The court considered the levels of meaning in an article falsely connecting the claimant with terrorist activity: ‘Once it is recognised that the article may be asserting no more than that in one way or another the respondents may unwittingly have . .
See AlsoJameel 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 . .
At First InstanceJameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
CitedEconomou v De Freitas QBD 27-Jul-2016
Failed action for defamation on rape allegations
The claimant had been accused by the defendant’s daughter of rape. He was never charged but sought to prosecute her alleging intent to pervert the course of justice. She later killed herself. The defendant sought to have the inquest extended to . .

Lists of cited by and citing cases may be incomplete.

Evidence, Defamation

Leading Case

Updated: 01 November 2021; Ref: scu.192047

Regina v James Hanratty (Deceased): CACD 10 May 2002

Posthumous Appeal – Clear Purpose and Care Needed

An appeal was presented against the conviction for a murder many years earlier. The prosecution sought to introduce DNA evidence to support its case. The appellant party objected.
Held: The purpose of the appeal was to achieve justice, and fresh evidence could be presented by the prosecution, and admitted by the court to achieve that purpose. Though the trial could certainly be criticised by current standards, it had not been at such a level as to make it fundamentally unfair. The court should be careful in expending so much time and money on very old cases.

Mr Justice Leveson
Times 16-May-2002, Gazette 13-Jun-2002, [2002] EWCA Crim 1141, [2002] 2 Cr App R 30, [2002] 3 All ER 534
Bailii
England and Wales
Citing:
CitedRegina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
See AlsoRegina v Hanratty CACD 26-Oct-2000
Persuasive but not conclusive evidence of the deceased’s involvement in a notorious murder for which he had hanged had been found by subsequent DNA analysis. That analysis could only be improved by direct DNA analysis to be obtained by exhuming his . .

Cited by:
CitedBeckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
See AlsoRegina v Hanratty CACD 26-Oct-2000
Persuasive but not conclusive evidence of the deceased’s involvement in a notorious murder for which he had hanged had been found by subsequent DNA analysis. That analysis could only be improved by direct DNA analysis to be obtained by exhuming his . .
CitedKelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State PC 14-Feb-2005
(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The . .
CitedNoye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .
CitedAdams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.170300

Hijazi v Yaxley-Lennon (Orse Tommy Robinson): QBD 22 Jul 2021

No Valid Evidence to Support Serious Accusations

The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The defendant’s attempt to justify the libel had absolutely no basis in fact. The claim succeeded. The very public and widely distributed allegation had caused considerable damage and distress to the claimant.
The defendant had sought to have admitted films of third parties, but no supporting evidence had been provided, and some appeared to have no knowledge that they were being filmed, and the defendant gave leading questions, and no allowance was made for section 5 of the 1995 Act. The court concluded that the films did not represent the truth of what might have happened: ‘the Defendant has failed to demonstrate that the Claimant had any propensity to behave in an aggressive or abusive manner towards girls and women. For the reasons I have given, I am unable to accept the evidence of AYQ and BWI, but even if I had accepted it, it would not have demonstrated a propensity on the part of the Claimant to act in this way. The more reliable contemporaneous evidence in the school records provides powerful support for the conclusion that the Claimant did not behave in the way alleged.’
‘the Defendant’s truth defence must be rejected and judgment on the claim will be granted to the Claimant.’

The Honourable Mr Justice Nicklin
[2021] EWHC 2008 (QB)
Bailii, Judiciary
Defamation Act 2013 12, Civil Evidence Act 1995 4
England and Wales
Citing:
CitedCairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
CitedBokova v Associated Newspapers Ltd QBD 31-Jul-2018
Nicklin J explained how circumstantial evidence might be admissible to prove the truth of a Chase level 2 meaning: ‘The ‘conduct rule’ and ‘circumstantial evidence’ have been further elucidated.
(i) While it is an essential requisite of a . .
CitedMonir v Wood QBD 19-Dec-2018
The court considered an online allegation of involvement in child sex abuse which was described as ‘life changing’ and having transformed the life of the claimant and his family and left him a recluse. Notwithstanding the ‘fairly limited . .
CitedHijazi v Yaxley-Lennon QBD 21-Apr-2020
The claimant said that distortions of a report of him being assaulted had been published by the defendant (otherwise Tommy Robinson) alleging violence on his part were defamatory. The court now determined the meanings of the publications. . .
CitedIn re Mumtaz Properties Ltd; Wetton v Ahmed CA 24-May-2011
Former directors appealed against finding as to their personal liability for directors’ and other loans.
Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in . .
CitedMiller v Associated Newspapers Ltd QBD 21-Dec-2012
Judgment after trial on defamation case
Mrs Justice Sharp considered the use of hearsay evidence admitted under section 4 of the 1995 Act: ‘As the authors of Phipson on Evidence, 17th edition, say at paragraph 29-15 ‘the [Civil Evidence] Act is . .
CitedHourani v Thomson and Others QBD 10-Mar-2017
Warby J identified the three issues on which the claimant bore the burden of proof in relation to each defendant on a claim of harassment as: (1) Did the defendant engage in a course of conduct? (2) Did any such course of conduct amount to . .
CitedDepp II v News Group Newspapers Ltd and Another QBD 2-Nov-2020
. .
CitedLachaux v Lachaux FD 2-Mar-2017
. .
CitedTerluk v Berezovsky CA 15-Dec-2011
The defendant journalist appealed against a finding of defamation in a Russian radio broadcast to London. . .
CitedBarron and Another v Vines QBD 2-Jun-2016
The court assessed damages having found that the claimant Labour MPs had been defamed by the defendant UKIP local politician. The defamations related to the alleged failures to control substantial child sex abuse in Rotherham.
Held: The . .
ExemplarGlenn v Kline QBD 5-Mar-2021
. .

Lists of cited by and citing cases may be incomplete.

Defamation, Evidence

Updated: 01 November 2021; Ref: scu.666147

Bolitho v City and Hackney Health Authority: HL 24 Jul 1997

The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain damage.
Held: In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence.
What other professionals do is persuasive evidence as to what is acceptable, but a consistent body of expert medical opinion may still be ignored by the judge, if he can be sure that no logical basis for the opinion has been shown to the court: ‘a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person’s duty towards the plaintiff required that she take that action.’
Lord Browne-Wilkinson said: ‘it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.’
. . And in all cases of causation: ‘the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure of the doctor to attend) that factual enquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred’.

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde
Gazette 10-Dec-1997, Times 27-Nov-1997, [1997] UKHL 46, [1998] AC 232, [1997] 4 All ER 771, [1997] 3 WLR 1151
House of Lords, Bailii
England and Wales
Citing:
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
CitedJoyce v Merton, Sutton and Wandsworth Health Authority CA 1996
Hobhouse LJ said: ‘Thus, a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or . .
CitedWilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
CitedMaynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
CitedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
CitedHucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward who was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
CitedEdward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .

Cited by:
CitedPatel and Another v Daybells (a Firm) CA 27-Jul-2001
Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered . .
CitedRegina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
CitedCalver v Westwood Veterinary Group CA 24-Nov-2000
The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led . .
CitedWisniewski (a Minor) v Central Manchester Health Authority CA 1-Apr-1998
Whether there existed a respectable body of medical opinion which would have taken the same steps as the doctor, leaving in the circumstances, the baby with d irreversible damage to his brain in the 13 minutes immediately prior to his birth at . .
CitedIzzard and Another v Field Palmer (a Firm) and others and Ministry of Defence CA 30-Jul-1999
The plaintiffs purchased their property after a valuation report to their lenders prepared by the respondent. The property was on an estate which proved to have serious faults of construction, and the design had proved at fault. The property could . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedCoudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
CitedPearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
CitedChester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
CitedPenney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedSutcliffe v BMI Healthcare Ltd CA 18-May-2007
The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
Held: The judge had dealt properly . .
CitedPierce v Doncaster Metropolitan Borough Council QBD 13-Dec-2007
The claimant sought damages, saying that the local authority had failed to protect him when he was a child against abuse by his parents.
Held: The claimant had been known to the authority since he was a young child, and they owed him a duty of . .
CitedMezey v South West London and St George’s Mental Health NHS Trust QBD 5-Dec-2008
The claimant psychiatrist allowed freedom within the insecure grounds of the hospital to a newly admitted but unexamined patient. He left and committed a homicide. She was suspended pending disciplinary proceedings by the Trust. An expert report . .
CitedO’Donnell and Another v Imray and others SCS 25-Apr-2003
The pursuer said that the defendants, her former solicitors, had been negligent when advising her. She was to claim for personal injury, but when the limitation period expired, they closed the file without advising her of the possibility of applying . .
CitedMaguire v North West Strategic Health Authority QBD 16-Nov-2012
maguire_westMSHAQBD2012
The claimant General Practitioner doctor had been found liable for professional negligence leading to very severe injury. He now sought a contribution from the Authority, saying that their similar mistake within a few days had similarly caused the . .
CitedRobbins v London Borough of Bexley CA 17-Oct-2013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
CitedBeary v Pall Mall Investments (A Firm) CA 19-Apr-2005
The independent financial advisor defendant had negligently failed to advise the claimant client about the possibility of taking out an annuity. However, the claimant would not have done so, unless he had been positively advised that he should. The . .
CitedMontgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
CitedThwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.135010

Secretary of State for Home Department v MN and KY: SC 6 Mar 2014

The court was asked as to the use of linguistic analysis (provided by SPRAKAB) as evidence in immigration cases so as to identify the origin of an appellant.
Held: The Practice Directions already provided guidance on the use and admission of expert evidence. As new forms of evidence came along, new guidance would become required. However, SPRAKAB experts gave their evidence under conditions of anonymity as against the parties. The Court suggested amendments to the Guidance given by the Upper Tribunal, saying that it should emphasise the duty of the court in each case itself to examine the evidence and its reasoning critically. Secondly, the issue of anonimity should be assessed from case to case in the light of the particular evidence and submissions made.

Lord Neuberger, President, Lord Clarke, Lord Carnwath, Lord Hughes, Lord Hodge
[2014] UKSC 30, [2014] 1 WLR 2064, [2014] 4 All ER 443, [2014] WLR(D) 227, 2014 GWD 17-325, [2014] INLR 590, 2014 SLT 669, 2014 SC (UKSC) 183, UKSC 2013/0202
Bailii, Bailii Summary, WLRD, SC, SC Summary
Scotland
Citing:
At UTIACRB (Linguistic Evidence SPRAKAB) Somalia UTIAC 15-Sep-2010
1 Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal . .
Appeal fromRB (Somalia) v Secretary of State for The Home Department CA 13-Mar-2012
The appellant claimed asylum on the basis that she was a member of the Bajuni minority clan from Koyama, an island in Somalia. If that was true, she risked persecution from the majority clan. She appealed against an adverse finding based in part on . .

Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.526195

In re M and R (Child abuse: Expert Evidence): CA 21 May 1996

On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. The children had suffered emotional harm at the hands of the mother and her partner and were likely to suffer significant harm in the future. He made an interim care order and adjourned the case to consider whether to return the children to the mother and her partner. The local authority appealed against the judge’s refusal to make a care order, saying the judge had erred by not taking the allegations of sexual abuse into account at the welfare stage.
Held: In part, it would be extraordinary if Parliament intended that, in one and the same case, evidence insufficient to satisfy section 31(2)(a) should be sufficient nevertheless to satisfy section 1(3)(e). The court drew attention to the unsatisfactory results which could follow in practice were this so. The 1972 Act made expert opinion on the ultimate issue admissible, giving effect in section 3 to the 1970 Report of the Law Reform Committee on Evidence of Opinion and Expert Evidence that ‘a statement by an expert witness … shall not be inadmissible upon the ground only that it expressed his opinion on the issue in the proceedings …’. Appeal dismissed.

Butler-Sloss, Henry and Saville LJJ
[1996] 2 FLR 195, [1996] 4 All ER 239, [1996] EWCA Civ 1317, [1996] Fam Law 541, [1996] 2 FCR 617
Bailii, Bailii
Children Act 1989 31(2)(a) 1(3)(e), Civil Evidence Act 1972 3
England and Wales
Cited by:
CitedIn re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
CitedDesigners Guild Limited v Russell Williams (Textiles) Limited PatC 14-Jan-1998
The defendant denied that it had copied the plaintiff’s designs.
Held: There was sufficient evidence of copying. It was wrong to dissect a work, but rather the court should look at the matter as a whole. . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.180422

A v B: EAT 19 Feb 2013

EAT Practice and Procedure : Admissibility of Evidence – Rehabilitation of Offenders Act 1974 – whether employment judge right to rule that justice could not be done without evidence of the employee’s spent conviction for kerb-crawling being admitted in evidence.

Keith J
[2013] UKEAT 0025 – 13 – 1902
Bailii
Rehabilitation of Offenders Act 1974
England and Wales
Citing:
CitedThomas v Commissioner of Police for Metropolis CA 28-Nov-1996
In an action for damages and false imprisonment, the defendant police officers sought to have introduced the claimant’s previous criminal record, which was expired under the 1974 Act.
Held: The judge had been correct not to follow practice in . .

Lists of cited by and citing cases may be incomplete.

Employment, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.472832

Elliott v Ratcliffe: FD 1 Feb 2013

elliott_radcliffeFD2013

The claimant sought a declaration of parentage in respect of a child under the 1986 Act, saying that he was not the father. Directions were given for a company to take samples, but instead the company requested the various parties to attend their own doctors for the samples to be taken. The parties disputed the validity of the chain of custody of the samples.
Held: The service may be adequate when parties wish to undertake private checks of paternity, but that was not what the court had ordered. The case would require adjournment for further evidence.

Holman J
[2013] EWHC 806 (Fam)
Bailii
Family Law Act 1986 55A

Children, Evidence

Updated: 01 November 2021; Ref: scu.472577

Hussain and Others v The London Borough of Waltham Forest: CA 19 Nov 2020

Facts of Spent Conviction Admissible at Common Law

The claimants sought licenses to manage houses in multiple occupation, but were refused, the council relying on spent convictions. The claimants sought summarily to strike out those parts of the pleadings referring to the spent convictions.
Held: For the reasons they gave, the tribunal panel were correct in their conclusion that section 4(1)(a) is, unlike section 4(1)(b), restricted in its scope, and does not include any proscription with regard to evidence of conduct constituting any spent convictions.
Held: The appeal failed: ‘the different words used in section 4(1)(a) and (b) were intended to have different effects so far as scope of the provisions is concerned: the admissibility prohibition in the former is deliberately drafted not to include evidence of conduct constituting the relevant offence(s).’ and ‘At common law, the fact of conviction was not evidence of the underlying facts of the offence; but misconduct which had founded a criminal charge and conviction was admissible in later civil proceedings. Section 11(1) and (2) of the Civil Evidence Act 1968 merely allowed the fact of conviction (which, as Mr Bates submitted, had been capable of proof by way of certification by the relevant court since the Criminal Act 1865) to be admissible in civil proceedings as proof that the relevant person committed the offence (section 11(2)(a)), and allowed the contents of various documents related to the criminal proceedings (such as the complaint and information) to be used as evidence of ‘the facts upon which the conviction is based’ (section 11(2)(b)). However, whilst the 1974 Act may have reversed the extension provided by the 1968 Act so far as spent convictions are concerned, there is nothing to suggest that it intended to reverse the common law position by which evidence of misconduct that had founded a criminal charge and conviction was admissible in later civil proceedings. Where (as is now often the case) a statutory scheme gives a regulator power to pursue both criminal and non-criminal enforcement steps, such a reversal would require regulators to elect which to take, often having to forego criminal proceedings if they wished to take other regulatory action on the licence. ‘
‘i) Section 4(1)(a) of the 1974 Act does not include any proscription with regard to evidence of conduct constituting any spent convictions. On that basis, subject to the agreement of my Lords, I would refuse the appeal.
ii) A local housing authority’s consideration and determination of a grant or revocation of a licence under Part 2 or 3 of the 2004 Act involve ‘proceedings before a judicial authority’ for the purposes of sections 4 and 7 of 1974 Act; so that such an authority has the power under section 7(3) to disapply section 4(1) and admit evidence of a spent conviction if it is satisfied that justice cannot be done without admitting that evidence.’

Sir Terence Etherton MR, Fulford VP CACD, Hickinbottom LJJ
[2020] EWCA Civ 1539, [2021] 1 WLR 922, [2020] WLR(D) 625
Bailii, WLRD
Housing Act 2004, Rehabilitation of Offenders Act 1974
England and Wales
Citing:
CitedDickinson v Yates CA 27-Nov-1986
The claimant sought damages against the police for assault, wrongful arrest, false imprisonment and malicious prosecution arising from an arrest for a suspected drink-driving offence. He was acquitted of charges of assaulting a police officer in the . .
Appeal fromHussain and Others v London Borough of Waltham Forest UTLC 5-Nov-2019
Housing – Licensing under parts 2 and 3 of the Housing Act 2004 – requirement for a licence holder to be a ‘fit and proper person’ – Rehabilitation of Offenders Act 1974 – treatment of spent convictions of a rehabilitated person and related criminal . .
OverruledYA v London Borough of Hammersmith and Fulham Admn 27-Jul-2016
Claim by way of judicial review challenging the Defendant’s decision to refuse to enter the Claimant on the Defendant’s housing register.
Held: . .

Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 31 October 2021; Ref: scu.656218

Interflora Inc and Another v Marks and Spencer Plc and Another: ChD 15 Apr 2013

The defendant objected to the introduction of certain evidence by the claimant under a Civil Evidence Act notice.
Arnold J
[2013] EWHC 936 (Ch), [2013] WLR(D) 183
Bailii, WLRD
Citing:
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 29-Apr-2010
Response to request for clarification of reference to the ECJ. . .
ECJ OpinionInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 24-Mar-2011
ECJ (Opinion) Trade marks – Keyword advertising corresponding to the trade mark of a competitor of the advertiser – Trade marks with a reputation – Blurring – Tarnishment – Free-riding – Directive 89/104 – . .
ECJInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 22-Sep-2011
ECJ Trade marks – Keyword advertising on the internet – Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation – Directive 89/104/EEC – Article 5(1)(a) and (2) – . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 20-Jun-2012
Application for permission to to adduce witness evidence at trial from witnesses gathered from two pilot surveys. . .
CitedMarks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-Feb-2013
‘The Claimants (‘Interflora’) seek the permission of the Court to adduce in evidence the witness statements of 13 witnesses at the trial of this action scheduled for mid April 2013. Interflora do not accept that they need the Court’s permission, but . .
See AlsoInterflora Inc v Marks and Spencer Plc CA 22-Mar-2013
Interflora had been refused permision to adduce survey evidence, but now appealed against refusal of permission to adduce evidence of confusion by witness statements.
Held: Appeal allowed. Reasons to follow. . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc CA 5-Apr-2013
The court gave its reasons for allowing the claimant to bring additional witness evidence as to confusion as opposed to survey evidence. . .

Cited by:
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-May-2013
Mark use in search engine was infringing use
The claimant mark owner alleged that the defendant, in paying a search engine to use the claimants mark as a search keyword was infringing its rights. The defendant argued that the use of the same sign in different contexts could amount to a . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 12-Jun-2013
The court considered the form of the injunction requested to give effect to the earlier full judgment in the case brought, requiring the defendant to discontinue any use of the terms complained of as infringing the claimant’s registered marks as . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509998

London Partners Capital Management Llp v Utkan and Others: ComC 23 Feb 2021

Application by the claimant for an order that the court makes a search, electronic imaging and provision of information order against the defendants, pursuant to section 7 of the Civil Procedure Act 1997, CPR 25.1 (1)(h) and/or section 37 of the Senior Courts Act 1981.
[2021] EWHC 423 (Comm)
Bailii
Civil Procedure Act 1997 7, Senior Courts Act 1981 37, Civil Procedure Rules 25.1
England and Wales

Updated: 26 October 2021; Ref: scu.668649

Griffiths v TUI (UK) Ltd: CA 7 Oct 2021

Whether and if so, in what circumstances, the court can evaluate and reject what is described as an ‘uncontroverted’ expert’s report. The question arises in the context of a claim in respect of gastric illness allegedly suffered as a result of consuming contaminated food or drink whilst staying at a hotel in Turkey on an all-inclusive package holiday provided by the Appellants,
Lady Justice Asplin
[2021] EWCA Civ 1442
Bailii
England and Wales

Updated: 19 October 2021; Ref: scu.668373

Re X (Non-Accidental Injury: Expert Evidence): FD 11 Apr 2001

A child had been injured, and the local authority sought a care order. An expert witness for the parents had argued that the child may have suffered a condition of Temporary Brittle Bone Disease (TBBD).
Held: Though the parents had been convicted before a criminal court, there had been no finding of fact relevant to the current application. The expert evidence was quite unsatisfactory. TBBD is not recognised as a condition, and the expert’s evidence was so tendentious as to call into question the validity of his claim to be an expert witness. The burden of proof of abuse lay upon the local authority but on the balance of probability. Though the injury could be safely ascribed to neither parent the threshold criteria had been reached and directions were given for further hearings.
Singer J
[2001] EWHC Fam 1, [2001] 2 FLR 90, [2001] EWHC Fam 6, [2001] Fam Law 497
Bailii, Bailii
England and Wales
Citing:
CitedRe AB (Child Abuse: Expert Witnesses) FD 1995
. .
CitedRe R (A Minor) (Expert’s Evidence) FD 1991
The court gave guidance on the principles to be followed by experts providing evidence in children cases. . .

Cited by:
CitedKent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.163054

Rutherford v Richardson: HL 1923

The decision of legal issues must depend on rigid rules of evidence necessarily general in their scope. It was very likely, therefore, in individual applications, to present an appearance of artificiality and even of inconsistency: ‘The issues pronounced upon by courts in criminal, and indeed, in civil matters are attended with such decisive consequences that the adoption in matters of evidence of a standard of admissibility which is so cautious as to be meticulous may not only be defended, but is in fact essential.’ and ‘Applying these considerations to the kind of difficulty which has often presented itself in the Divorce Court, we find that a case which has sometimes been ignorantly derided is in fact both logical and defensible: for instance A, a husband, brings against his wife, B, a petition for divorce on the ground of her adultery with a named co-respondent, C. There is some independent evidence against both B and C, but not sufficient to justify a positive adverse conclusion. B, however, makes a full confession. Here the court may very reasonably pronounce a decree against B, while concluding that the matter is not established as against C. Indeed, to hold otherwise would be to lay it down that the admission or confession of B – which may be quite untrue and which may be induced by hidden and private motives – is to be treated as good evidence against C. And so it happens that the court may quite reasonably conclude that it is proved that B has committed adultery with C, but not that C has committed adultery with B.’
Viscount Birkenhead
[1923] AC 1
England and Wales
Cited by:
CitedRegina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.222546

Regina v Randall: HL 18 Dec 2003

Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By putting his own record in issue the co-defendant had lost the protection of the 1898 Act: ‘where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries. ‘ Lord Steyn: ‘It is no answer to admitting [similar fact] evidence that it is evidence of the propensity of the accused to commit certain crimes. On the contrary, that is often the very reason for admitting such evidence. While these rules are not applicable in this case their rationale illustrates that propensity to commit certain crimes may sometimes be relevant to the fact in issue.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
[2003] UKHL 69, Times 19-Dec-2003, [2004] 1 Cr App R 26, [2004] 1 All ER 467, [2004] 1 WLR 56
House of Lords, Bailii
Criminal Evidence Act 1898 1(3)
England and Wales
Citing:
Appeal fromRegina v Randall (EP) CACD 21-Feb-2003
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been . .
CitedLowery v The Queen PC 1974
(Victoria) A young girl was sadistically murdered. The two accused, were present and the crime was committed by one or the other, or both. Each brought evidence of the unlikelihood that he could have committed the murder. L emphasised his good . .
CitedRegina v Bracewell CACD 1978
When there is more than one defendant in a case, the test of the relevance of an accused’s previous convictions before their admission into evidence, must be strictly applied ‘for if irrelevant and therefore inadmissible evidence is admitted, the . .
CitedRegina v Miller 1952
The fact that a defendant has previous convictions is not normally relevant: ‘The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally . .
CitedRegina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .
CitedLobban v The Queen PC 28-Apr-1995
(Jamaica) The judge had no discretion to exclude evidence on request of co-defendant in joint trial. The exculpatory part of co-accused statement not to be excluded since it was his right to have it put in. Those who are charged with an offence . .
CitedRegina v Neale CACD 1977
Neale and Burr were jointly charged with arson and manslaughter. N wanted to adduce evidence, either by cross-examining prosecution witnesses or leading evidence himself, that B had admitted that he had started fires himself on four other occasions. . .
CitedRegina v Lee CACD 1976
A defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house. The relevance of this evidence is that it goes to disposition. . .
CitedRegina v Aziz; Regina v Tosun; Regina v Yorganci HL 16-Jun-1995
The defendant (one of three) relied upon his part exculpatory statement made in interview and did not give evidence. The judge said that his good character was relevant as to his own propensity, and the character of the others was relevant to their . .
CitedRegina v Vye etc CACD 7-Apr-1993
Detailed guidance was given on good character directions, as to how and when they should be given, but: ‘Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this . .
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: . .
CitedRegina v Murray CACD 10-Jun-1994
If one defendant claims a defence of duress from fear of the other’s driving, the other driver’s driving convictions are relevant and can be admitted in evidence. Evidence of the convictions of the other driver should have been admitted even though . .

Cited by:
Appealed toRegina v Randall (EP) CACD 21-Feb-2003
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been . .
CitedRegina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
CitedO’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 . .
CitedHenry, Regina v CACD 29-Jun-2005
The defendant appealed his conviction for soliciting to murder and conspiracy to murder. An expert’s opinion now described him as of low intelligence and vulnerable to the sort of pressure of which he complained.
Held: The expert evidence had . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.188922

Rosenthal v Regina: CACD 4 Dec 2001

The defendants were charged with fraudulent trading. Two defendants sought to exclude the statement of another which had been obtained under compulsion. There was a conflict of interest between the defendants. A question arose as to the power of co-defendants to cross examine co-accused on such statements. The amendment to the Act created after Saunders applied, and evidence of its contents was not admissible unless he raised an issue which it covered. However although a question of law arose, the court had no jurisdiction to hear the appeal against the judge’s order.
Lord Justice Kennedy, Mr Justice Hughes, And, Mr Justice Keith
[2001] EWCA Crim 2717
Bailii
Criminal Justice Act 1987 2(8AA), Companies Act 1985 458 389A(2)
England and Wales

Updated: 14 October 2021; Ref: scu.166949

The Secretary of State for Trade and Industry v Bairstow: CA 11 Mar 2003

The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The defendant wished to challenge the finding.
Held: Following Hollington v Hewthorn, a collateral attack on a finding of an earlier tribunal might be, but need not necessarily be, an abuse of process. If the earlier findings were in a criminal court, they would bind a later court in defamation proceedings, but would only be prima facie in others. An earlier finding in a civil court would bind a later civil court. If the parties in the later case were not parties to the first, it would be an abuse only if the later proceedings would be manifestly unfair, or relitigation would bring the court into disrepute. There was no reason why an earlier finding of a civil court with a lower burden of proof should bind a later court required to use a higher burden.
Sir Andrew Morritt V-C said: ‘In my view these cases establish the following propositions. (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. (b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of sections 11 to 13 of the Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings. (It is not necessary for us to express any view as to whether the evidence to displace such presumption must satisfy the test formulated by Lord Cairns LC in Phosphate Sewage Co Ltd v Molleson 4 App Cas 801, 814, cf the cases referred to in paragraphs 32, 33 and 35 above.) (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute’.
Lady Justice Hale, Lord Justice Potter, Sir Andrew Morritt VC
[2003] EWCA Civ 321, Times 31-Mar-2003, Gazette 09-May-2003, [2004] Ch 1, [2003] 3 WLR 841, [2003] 1 BCLC 696, [2003] BCC 682, [2003] CP Rep 46, [2004] 4 All ER 325
Bailii
Company Director Disqualification Act 1986
England and Wales
Citing:
CitedHollington v E Hewthorn and Co Ltd CA 1943
Decisions of an earlier tribunal were not binding or admissible in later proceedings where the earlier proceedings were before a court of criminal jurisdiction. Evidence of a prior conviction would not have been admissible in separate criminal . .
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedGleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .

Cited by:
CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
CitedLaing v Taylor Walton (A Firm) QBD 20-Feb-2007
The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .
CitedCalzaghe v Warren QBD 20-Jan-2010
The claimant boxer had secured judgement for fight fees from a company operated by the respondent manager and promoter. After the judgment the defendant had put the company into administration. The claimant now sought payment from the defendant . .
CitedOMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
CitedSpicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.179746

Regina v Abadom: CACD 1982

A properly qualified expert is entitled to rely on what might otherwise be considered as hearsay, that is to say findings by other experts in the same field in support of an opinion on any given set of facts. ‘In the context of evidence given by experts it is no more than a statement of the obvious that, in reaching their conclusion, they must be entitled to draw on material produced by others in the field in which their expertise lie.’ and ‘Once the primary facts on which their opinion is based have been proved by admissible evidence, they are entitled to draw on the work of others as part of the process of arriving at their conclusion. However, where they have done so, they should refer to this material in their evidence so that the cogency and probative value of their conclusion can be tested and evaluated by reference to it.’
Kerr LJ
[1983] 1 All ER 364, [1983] 1 WLR 126, [1982] 76 Cr App R 48
England and Wales
Cited by:
CitedLondon Borough of Southwark v Venette Simpson Admn 3-Nov-1998
It was not necessary for environmental health officers to possess medical qualifications to express opinion as to whether or not premises were prejudicial to health as defined by section 79(1)(a) of the Act. The council appealed a finding that . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedRegina v Weller CACD 4-Mar-2010
The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.185099

Dickson Apothecary v L Coldingknows: SCCASf 15 Jul 1024

The verity of a libel being referred to a defender’s oath, the Lords found the pursuer could not exclude the defender from deponing, by a horning.
In an action pursued by Thomas Dickson apothecary, contra the L Coldingknows, where the summons being admitted to the pursuer’s probation, and referred to the defender’s oath of verity simpliciter, and at the terms assigned to that effect, the defender offering to depone, Turcu confessed, being rebel. The Lords found, That in this, and the like cases, the pursuer could not exclude the defender to depone, nor obtrude horning against him to debar him, seeing he craved his oath for his probation, and had warned him to compear to give his oath; and therefore could not refuse that whereof he himself had made election, and which was desired by him; and so the horning was not admitted, in respect it was a severe consequence to hold the defender pro confesso upon a libel which might possibly contain more than the defender was worth being so debarred, and there being no other probation; but it is to be adverted, that in all the causes almost, where parties defenders are summoned, this reason may exclude all pursuers to debar the defenders by horning; for it may be alleged, that seeing they are summoned to hear decreets given against them, or else to allege a cause in the contrary; by the same reason, they may say, that seeing he is summoned to allege a cause why the pursuer should not have his intent, he ought not to be debarred by horning to propone lawfully that which by the pursuers summons is permitted to him to do; and in these cases, the defenders not the less may be debarred by hornings.
[1024] Mor 10153
Scotland

Updated: 14 September 2021; Ref: scu.547555

Polivitte Ltd v Commercial Union Assurance Co Plc: 1987

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise
[1987] 1 Lloyds Rep 379
England and Wales
Cited by:
CitedCala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.667555

Re J: 1990

Federal Court of Australia – An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion – If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.
Mr Justice Cazalet
[1990] FCR 193
Australia
Cited by:
CitedCala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.667556

Shearson Lehman Inc v Maclaine, Watson Ltd: CA 1987

The court considered an application for an interim award of damages.
Held: Lloyd LJ said: ‘Something more than a prima facie case is clearly required; but not proved beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden.’ The court is not required to be sure in the sense of being satisfied beyond reasonable doubt and being able to exclude every possibility of failure because the order for interim payment may be reversed at trial.
Rules 11 and 12 of Order 29 should be read together to permit the court to make an order for interim payment where it is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment either for substantial damages under r.11(1)(c) or for substantial sum of money apart from damages within r.12, even though thought not to be certain which
Lloyd, Nichols LJJ
[1987] 1 WLR 480
England and Wales

Updated: 01 September 2021; Ref: scu.510790

Dean Cedeno v Kenwin Logan: PC 18 Dec 2000

(Trinidad and Tobago) The defendant appealed conviction and sentence for larceny, based on identification evidence. He said that the magistrate had failed to give proper weight to the need, pace Turnbull, to be careful in accepting identification evidence. The Appeal court had also proceeded without having proper documentation from the hearing.
Held: The appeal court had adequate information on which to test the matters in issue. Counsel had also warned the magistrates of the need for care in accepting the identification evidence. Appeal dismissed. In view of the exceptional failures of the prosecution, costs would be awarded to the defendant.
Lord Hope of Craighead, Lord Cooke of Thorndon, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
[2000] UKPC 48, Appeal No 34 of 1999)
Bailii, PC, PC
England and Wales
Citing:
CitedRegina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
CitedJunior Reid, Roy Dennis and Oliver Whylie v The Queen; Errol Reece, Robert Taylor and Delroy Quelch v the Queen PC 27-Jul-1989
PC (Jamaica) . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.163264

ISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited: ChD 14 Feb 2003

Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy.’ On the facts, an injunction should be refused ‘on the ground of the public interest in the disclosure of wrongdoing and the proper administration of justice’.
Mr Justice Lawrence Collins
[2003] EWHC 165 (Ch), [2003] 2 All ER 252, [2003] CP Rep 39
Bailii
England and Wales
Citing:
CitedGoddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Cited by:
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179326

H v H (Minor) (Child Abuse: Evidence); Re H (A Minor); Re K (Minors) (Child Abuse: Evidence): CA 1989

An application was made for a wardship after allegations of child abuse.
Held: The test for evidence of child abuse which is appropriate is the ordinary civil standard of balance of probabilities as applied to the facts of each case.
Butler-Sloss LJ said: ‘[The judge] may have found individual facts, such as inappropriate knowledge or behaviour, which constitute a high degree of concern about the child without being able to say on the test that they amount to actual abuse. They are, however, relevant to the exercise of the discretion. He may have sufficient evidence of concern about the past care of the child to be satisfied that the child was in a potentially abusing situation without having sufficient evidence to be satisfied as to the extent of the abuse in the past or the identity of the abuser.’
Stuart-Smith LJ said: ‘In the type of case with which we are concerned in these appeals there may be insufficient evidence upon which the judge can conclude that the father has sexually abused his children, nevertheless there may be sufficient evidence to show that there is a real chance, possibility or probability that he will do so in the future if granted access.’
Butler-Sloss LJ, Stuart-Smith LJ
[1990] Fam 86, [1989] 2 FLR 313
England and Wales
Cited by:
CitedIn re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.406179

George Barnet and Others v Alexander Barnet and Others: HL 27 May 1873

This was an appeal from a decision of the Second Division. Certain conjoined actions were raised relating to the succession of the late James Barnet, innkeeper, of Old Meldrum, and owner of the estate of Hillhead of Pitfodels. The heritable estate was worth about pounds 350 a-year, and there was a sum of about pounds 11,000 of personal estate. Mr Barnet left a trust disposition and settlement in favour of Alexander Burness, Esq., of Mastrick, Dr Paul of Banchory, and another, conveying to them his whole heritable and moveable estate, and directing them to dispose of the estate according to instructions which he would leave. He did not leave any instructions, and the result was that he died intestate. Various parties soon appeared, claiming propinquity to the truster, and the representatives of the Crown claimed the estate on the ground that he left no relatives. The whole of these parties were brought into the field by an action of multiplepoinding. Ultimately there were two parties. One set of relatives were headed by Alexander Barnet, and others, the respondents; a second party was headed by George Barnet, and others. The appellants’ evidence at great length was taken, and the Lord Ordinary held that the evidence preponderated in favour of Alexander Barnet’s party. The Second Division in substance affirmed this judgment; thereupon the present appeal was brought.
[1873] UKHL 452
Bailii
Scotland

Updated: 11 August 2021; Ref: scu.652912

Nicholas v Penny: QBD 1950

A police officer’s assessment of a defendant’s speed could be corroborated by evidence as to the reading of a speedometer, even if the latter device had not been checked for the accuracy of its reading, unless there were particular reasons for deciding otherwise. ‘The question in the present case is whether, if evidence is given that a mechanical device, such as a watch or speedometer, recorded a particular speed or a particular time, that recording is prima facie evidence on which the court can act. In a particular case the court might refuse to act on it, but here counsel for the respondent called our attention to the fact that the difference is very great. The offence is driving at a speed exceeding thirty miles an hour, and the evidence is that the speedometer showed that the appellant was exceeding that speed by ten miles an hour. It would be a very considerable error if the speedometer was as much out as that.’
There is a very well-established presumption in the law of evidence that a measurement made by a technical or scientific instrument is accurate, if the instrument is of a type which as a matter of common knowledge or experience may be expected to be accurate. In my opinion, a tape measure is undoubtedly such an instrument.
Lord Goddard CJ set out the doctrine of ‘per incuriam’, saying: ‘ ”Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.’
Lord Goddard
[1950] 2 KB 466, [1950] 2 All ER 89
England and Wales
Cited by:
CitedIaciofano v Director of Public Prosecutions Admn 15-Jul-2010
iacioganio_dppAdmn10
The defendant appealed against his conviction for speeding, saying that the device used to measure his speed was not approved. The only evidence relied on was that the officer said it had been installed in many police vehicles.
Held: The . .
CitedIaciofano v Director of Public Prosecutions Admn 15-Jul-2010
iacioganio_dppAdmn10
The defendant appealed against his conviction for speeding, saying that the device used to measure his speed was not approved. The only evidence relied on was that the officer said it had been installed in many police vehicles.
Held: The . .
CitedClarke v Crown Prosecution Service Admn 7-Feb-2013
The defendant appealed against his speeding conviction, seeking to challenge the accuracy of the police officer’s speed measuring device.
Held: The appeal failed. There was not the need to certify the device in the way suggested by the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.424958

Browne v Perry: PC 14 Oct 1991

(Antigua and Barbuda) The parties disputed a claim for land by adverse possession.
Held: Any acknowledgement of a paper title must be in writing. Lord Templeman explained the rule against reliance upon oral acknowledgements in adverse possession cases: ‘If an oral acknowledgment were allowed to constitute an interruption litigation would be encouraged and litigants would dispute what was said, by whom and to whom . . Once an acknowledgment has been reduced to writing, there is certainty about the words used and the court need only decide whether the words which have been written amount to an acknowledgment. There is no room for fraud, mistake or failure of memory. The written word speaks for itself.’
Lord Templeman, Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Goff, Sir Maurice Casey
[1991] WLR 1297, [1991] UKPC 33
Bailii
Limitation Act 1980 S1
England and Wales
Cited by:
CitedMayor and Burgesses of London Borough of Lambeth v George Bigden and Others CA 1-Dec-2000
A block of flats had been occupied over several years by a succession of squatters. The present occupiers appealed an order for possession, and the authority appealed refusal of possession for other flats. The occupiers asserted possessory title. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.187455

The Sussex Peerage Case: 1844

Statements against penal interest are outside the common law exception of statements against interest. The oral confession of a deceased person was considered.
The court considered principles of statutory interpretation: ‘Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver.’ and ‘If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver’.
Tindal CJ
(1844) 11 Cl and Fin 85, 8 ER 1034, [1844] EngR 822, (1844) 11 Cl and Fin 85, (1844) 8 ER 1034
Commonlii
England and Wales
Cited by:
CitedOnesearch Direct Holdings Ltd (T/A Onesearch Direct) v City of York Council Admn 19-Mar-2010
onesearch_yorkAdmn2010
The court considered the conditions under which the respondent authority replied to all enquiries as to properties within its area. The replies were given by a standardised all inclusive information sheet derived from a central database. The . .
CitedVacher and Sons Ltd v London Society of Compositors HL 18-Nov-1912
Lord Moulton said that the danger of departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’.
Lord Haldane LC after stating that . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.218846

Simetra Global Assets Ltd and Another v Ikon Finance Ltd and Others: CA 9 Aug 2019

The claimant alleged that the various defendants had been involved in dishonest assistance in the running of an investment ponzi scheme leading to substantial losses.
Held: The Court considered the considerations for an appellate court asked to set aside a judge’s findings of fact.
Males LJ said: ‘in a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, he should explain why they are not to be taken at face value or are outweighed by other compelling considerations. ‘
Males LJ said: ‘succinctness is as desirable in a judgment as it is in counsel’s submissions, but short judgments must be careful judgments’.
McCombe, Peter Jackson , Males LJJ
[2019] EWCA Civ 1413, [2019] 4 WLR 112, [2019] WLR(D) 475
Bailii, WLRD
England and Wales
Citing:
Appeal fromSimetra Global Assets Ltd and Another v Ikon Finance Ltd and Others ComC 9-Oct-2018
False . .

Cited by:
CitedKogan v Martin and Others CA 9-Oct-2019
Dispute over the authorship of the screenplay of a film.
Held: ‘the judgment cannot stand. The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material . .
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.
Updated: 29 July 2021; Ref: scu.640510

Miller v Associated Newspapers Ltd: QBD 21 Dec 2012

Judgment after trial on defamation case
Mrs Justice Sharp considered the use of hearsay evidence admitted under section 4 of the 1995 Act: ‘As the authors of Phipson on Evidence, 17th edition, say at paragraph 29-15 ‘the [Civil Evidence] Act is not intended to provide a substitute for oral evidence. The basic principle under which the courts operate is that evidence is given orally with cross-examination of witnesses, and the admission of hearsay evidence is, and should be the exception to the rule. Caution should be exercised before tendering important evidence through hearsay statements. Hearsay evidence is better used where the evidence is peripheral or relatively uncontroversial.’
It seems to me that selective snippets of hearsay from individuals who have not been called, particularly where it has been ‘cherry picked’ from material which casts it in a different light, provides an obviously unsatisfactory evidential basis upon which to invite a court to find facts and/or draw adverse inferences whether as to the conduct of those individuals or anyone else. In a sense, it is Hamlet without the Prince. There may be cases where hearsay evidence and/or the contemporaneous documents in combination provide persuasive evidence, but in my judgment, they did not do so here. It is no answer to the problematic nature of the hearsay evidence relied on in this case for the Defendant to suggest . . that it was open to Mr Miller either to call the relevant individuals himself, or require their attendance for cross-examination. The burden is on the Defendant to prove its case; and the tendering of hearsay evidence which lacks weight for various reasons doesn’t cast any burden on a claimant to require the witness concerned to be called for cross-examination let alone to call the person concerned as his or her own witness.’
Mrs Justice Sharp
[2012] EWHC 3721 (QB)
Bailii
Civil Evidence Act 1995 4
England and Wales
Citing:
See AlsoMiller v Associated Newspapers Ltd QBD 11-Nov-2003
A policemen sued in defamation. The newspaper pleaded Reynolds qualified privilege.
Held: The plea was struck out. There has developed tendency of defendants to plead qualified privilege since the Reynolds decision in ‘rather waffly . .
See AlsoMiller v Associated Newspapers Ltd QBD 8-Apr-2005
. .
See AlsoMiller 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: . .

Cited by:
CitedHijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.470156

Lachaux v Lachaux: FD 2 Mar 2017

Mostyn J
[2017] EWHC 385 (Fam), [2017] 4 WLR 57, [2017] 2 FCR 678, [2017] WLR(D) 171, [2018] 1 FLR 380
Bailii, WLRD
England and Wales
Citing:
CitedDuhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .

Cited by:
CitedRadseresht v Radseresht-Spain FD 13-Oct-2017
Applications by H for declarations that a divorce granted in 2009 in Dubai is entitled to recognition in England and Wales under s.45 of the 1986 Act, and of status under s.55 of the Act, and going with that his application to strike out the prayer . .
Appeal fromLachaux v Lachaux CA 1-May-2019
Recognition of an overseas divorce, and whether UK court had jurisdiction. . .
CitedHijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.579929

Hourani v Thomson and Others: QBD 10 Mar 2017

Warby J identified the three issues on which the claimant bore the burden of proof in relation to each defendant on a claim of harassment as: (1) Did the defendant engage in a course of conduct? (2) Did any such course of conduct amount to harassment? and (3) Did the defendant know, or should the defendant have known, that the conduct amounted to harassment? In addition (see [5] and [6]), that case involved an assessment of the merits of the defences that any course of conduct did not amount to harassment because it was (i) pursued for the purpose of preventing or detecting crime and/or (ii) in the particular circumstances, reasonable.
Warby J said: ‘There must, therefore, be conduct on at least two occasions which is, from an objective standpoint, calculated to cause alarm or distress and oppressive, and unacceptable to such a degree that it would sustain criminal liability: see Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) [142] (Simon J).
The reference to an ‘objective standpoint’ is important, not least when it comes to cases such as the present, where the complaint is of harassment by publication. In any such case the Court must be alive to the fact that the claim engages Article 10 of the Convention and, as a result, the Court’s duties under ss 2, 3, 6 and 12 of the Human Rights Act 1998. The statute must be interpreted and applied compatibly with the right to freedom of expression, which must be given its due importance. As Tugendhat J observed in Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB) at [267] ‘[i]t would be a serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted’ . .
In general it may be better to evaluate a given factual scenario in its totality, before reaching a conclusion on whether it amounts to harassment. But in this case I have no difficulty dealing, in isolation, with the question of whether it has been proved that the defendants’ conduct actually caused alarm or distress, or other emotions or impacts consistent with it amounting to harassment. To do so involves picking out for separate consideration the question of whether the claimant has proved the harm which is plainly an element of the tort. As Lord Phillips said in Thomas . . : ‘It seems to me that section 7 [(2)] is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.’ On the facts of this case at least I see no great difficulty, either, in dealing in isolation with the objective aspect of the same question, namely whether the defendants’ conduct was calculated or likely to produce alarm or distress. I can also reach a conclusion on whether the conduct reached the necessary level of gravity or, put another way, whether it was objectively oppressive, having regard to the subject-matter, the claimant’s status, personality, and the other objective circumstances relied on.
But it seems to me that the question of subjective intention belongs in a different category, and is difficult to assess fairly other than in the context of the twin defences of legitimate purpose and reasonableness that are advanced in reliance on s 1(3). It seems reasonable to conclude that conduct which causes distress but might otherwise be fair and reasonable may in fact be unreasonable, if it is engaged in for an illegitimate purpose, or with malign intent. An example was given by Counsel in Thomas: ‘ . . the editor who uses his newspaper to conduct a campaign of vilification against a lover with whom he has broken off a relationship’ (see [36]). This approach would seem consistent with the requirement of the Strasbourg jurisprudence that the right to freedom of expression should be exercised in good faith. Similar reasoning applies to the defendants’ further contention that I should find against Mr Hourani on this issue because ‘For many years he benefitted to an extraordinary degree from his close connections to [Aliyev] and the elite of the Kazakh State. As a result he was able to accumulate vast wealth.’ These are disputed allegations, the truth or falsity of which cannot affect the question of whether the offending acts were likely to or did cause harm, or whether they were objectively oppressive.’
As to the use of hearsay evidence, Warby stated as a general proposition: ‘that it is unsatisfactory to introduce important evidence by means of selective extracts from hearsay written statements.’
Warby J
[2017] EWHC 432 (QB)
Bailii
England and Wales
Citing:
See AlsoHourani v Thomson and Others QBD 20-Jan-2017
. .
See AlsoHourani v Thomson and Others QBD 6-Feb-2017
Applications for inspection of documents in claim for defamation and harassment. . .

Cited by:
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 . .
CitedHijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.581312

Re F (Children) (DNA Evidence): FD 20 Dec 2007

The court considered the difficulties which can arise from the use of DNA testing in family proceedings. Experts need to bear in mind that their reports should be expressed in terms which can be understood by lay people and in terms which explain clearly the scientific justification (and limitations) for the opinions being expressed.
Anthony Hayden QC HHJ
[2007] EWHC 3235 (Fam), [2008] 1 FLR 328
Bailii
England and Wales
Cited by:
CitedLondon Borough of Richmond v B and Others FD 12-Nov-2010
Caution in Use of Hair Samples to Test Alcohol
The court considered the extent to which reliance could be placed on tests of hair samples for alcohol in care proceedings.
Held: Such evidence should be used with caution: ‘(i) When used, hair tests should be used only as part of the . .

These lists may be incomplete.
Updated: 18 July 2021; Ref: scu.264662

Countess of Rutland’s Case: 1604

Popham CJ said: ‘it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory.’
Popham CJ
(1604) 5 Co Rep 25, [1572] EngR 423, (1572-1616) 5 Co Rep 25, (1572) 77 ER 89
Commonlii
England and Wales
Citing:
See AlsoThe Countess of Rutland’s Case 1572
. .
See AlsoIsabel Countess of Rutland’s Case 1572
. .

Cited by:
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
See AlsoThe Countess of Rutland’s Case 1572
. .
See AlsoElizabeth Countess of Rutland v Isabel Countess of Rutland 1653
. .
See AlsoThe Countess of Rutlands Case 1669
. .
See AlsoThe Countess of Rutland’s Case 1793
. .
See AlsoElizabeth Countess of Rutland v Isabel Countess of Rutland 1653
. .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.374674

Indian Oil Corporation v Greenstone Shipping SA: 1988

A ship had on board some oil of the shipowners and it was mixed with oil, the property of the receivers, and transported to India. The mixture could not be separated for practical purposes and the question was how much of the oil were the receivers entitled.
Held: The court discussed the modern meaning of the rule of evidence known in Latin as ‘omnia praesumuntur contra spoliatorem’ (everything is presumed against a destroyer (of evidence)): ‘If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent possible in the circumstances.’
Staughton J said: ‘The analogy with Armory v Delamirie . . is striking. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.’
Staughton J
[1988] QB 345, [1987] 3 All ER 893
England and Wales
Citing:
CitedLupton v White 19-Dec-1808
Whatever alteration of form any property may undergo, the true owner is entitled to seize it in its new shape if he can prove the identity of the original material. . .

Cited by:
CitedMalhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.193788

PJSC Tatneft v Bogolyubov and Others: ComC 13 Nov 2020

Judgment on application to admit witness statement
Mrs Justice Moulder
[2020] EWHC 3250 (Comm)
Bailii
England and Wales
Cited by:
See AlsoPJSC Tatneft v Bogolyubov and Others ComC 24-Nov-2020
Judgment on the application by the second defendant as to:
(i) whether or not there has been a waiver of privilege in respect of matters identified and, if so, the scope of such waivers;
(ii) if there has been a waiver of privilege, the . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.657585

Beckles v The United Kingdom: ECHR 8 Oct 2002

The applicant had been convicted of serious offences, in part in reliance upon inferences drawn from his partial silence during interview. At trial, he said this had been on legal advice, and was ready to answer questions about that advice, but none were put.
Held: The right of silence was not absolute, but the right against self-incrimination lay at the heart of the notion of a fair trial. A conviction could not be based solely on inferences drawn from silence, but he could be expected to answer questions, where the situation clearly called for his explanation. In this case, the judge did not give the jury sufficiently clear direction on the accused’s explanation of why he had not answered questions, and had undermined that evidence. There had been a violation of his art 6.1 rights. ‘whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation. Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences’.
Pellonpaa, Bratza, Trdruejo, Palm, Casadevali, Marustem, Paviovschi JJ
Times 15-Oct-2002, 44652/98, (2002) 36 EHRR 162, [2002] ECHR 661, (2003) 36 EHRR 13, 13 BHRC 522
Bailii
European Convention on Human Rights 6.1
Human Rights
Cited by:
CitedBeckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
CitedRegina v Boyle and Another CACD 25-Aug-2006
The appellants had been convicted of murder. They complained that the judge had misdirected the jury as to the effect of their silence and the inferences to be drawn.
Held: The appeals failed. Whilst the direction on s34 was defective, it had . .
CitedWebster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
CitedBlack v Regina CACD 17-Jul-2020
Disclosure Sufficient to Support Inference
The court was asked whether sufficient evidence had been adduced about the strength of the prosecution case at the time of interview, to permit an adverse inference to be drawn from the failure to mention specific facts pursuant to section 34 of the . .

These lists may be incomplete.
Updated: 02 July 2021; Ref: scu.177426

Sazerac Brands, Llc and Others v Liverpool Gin Distillery Ltd and Others: ChD 2 Jul 2020

Application by the claimants for permission to re-re-amend the particulars of claim to plead what is in substance similar fact evidence seeking to establish a propensity on the part of the defendants to behave in a particular way. In this claim for Trade Mark infringement and passing off, the claimants wish to allege and prove that the defendants, or some of them have, to put it colloquially, ‘form’ in intentionally or deliberately taking unfair advantage of the reputations and goodwill of others.
Fancourt J
[2020] EWHC 1841 (Ch)
Bailii
England and Wales

Updated: 07 June 2021; Ref: scu.652402

McDonald Corporation v Steel: CA 1995

A defendant may not put on the record a plea of justification unless he believes it to be true: ‘It is true that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available. But, as counsel for the plaintiffs recognised in the course of the argument, there will be cases where, provided a plea of justification is properly particularised, a defendant will be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories.’ and ‘It will be seen from the wording of r 19(2) that, by necessary implication, evidence is admissible on an application to strike out a pleading on the ground that it is an abuse of the process of the court. Evidence is likewise admissible on an application under the court’s inherent jurisdiction. It follows therefore that there can be no objection in principle to an application being made to the court on the basis that a statement of claim or a defence should be struck out as an abuse of process because, as disclosed in the affidavits filed in support of the application, the claim or defence is incapable of proof.’
Neill LJ
[1995] EMLR 527, [1995] 3 All ER 615
England and Wales
Cited by:
CitedAdelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.278224

Armagas Ltd v Mundogas SA (‘The Ocean Frost’): CA 1985

Proof of corruption not needed for bribe

In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the objective facts and the overall probabilities.
Held: Mundogas was not vicariously liable for Mr. Magelssen’s deceit.
Goff LJ said: ‘Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’
On the facts as found and ‘the effect of the judge’s conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law.’
Goff LJ, Staughton J, Dunn J
[1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640
England and Wales
Citing:
CitedHovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .
CitedIndustries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
AdoptedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:
CitedDr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
AdoptedGrace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
AppliedNina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
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 . .
CitedDEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Appeal fromArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedFen and others v D’Cruz and others CA 13-Mar-2007
The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed. . .
CitedIn Re Selectmove Ltd CA 21-Dec-1993
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
CitedThornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
AppliedGoodman v Faber Prest Steel CA 5-Mar-2013
The defendant appealed against the award of damages after being found liable for injuries caused in a road traffic accident. They disputed whether the injuries now complained of were the result of the accident.
Held: the appeal succeed and the . .
CitedNuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.183409

Her Majesty’s Advocate and Another v Mcintosh: PC 5 Feb 2001

(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with his article 6 rights. The first question was whether he remained a person ‘charged with a criminal offence’. The Court felt not. The application was not initiated by the complainant, could only be made after a conviction, and was part of the sentencing procedure,. The defendant was accused of no additional criminal activity, the statement lodged in support of an application for confiscation order was an accounting statement and not an accusation, the sum ordered did not be the profit from drug trafficking or any other offence, and the time order to be served in the case of default related to the failure, not to any underlying offence, any risk that matters referred to in the statement might be subject to a later charge, left a possibility of double jeopardy, and the proceedings and did not conclude in the verdict. The statutory scheme laid down by a democratically elected parliament should not be readily rejected. The sources of the assets was known to the defendant and a defendant explain them would not be faced with a court order.
Criminal confiscation proceedings do not amount to the bringing of a fresh criminal charge and thus Art. 6(2) of the European Convention on Human Rights is not directly engaged. However, a court is required to act with ‘scrupulous fairness’ in making its assessment for the purposes of a confiscation order. Further, the proceedings are designed to be fully adversarial, affording the accused every opportunity to challenge evidence against him and to call witnesses.
Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Gazette 15-Feb-2001, Times 08-Feb-2001, [2001] 3 WLR 107, DRA No 12 of 2000, [2003] 1 AC 1078, [2001] UKPCD 1, [2001] 2 All ER 638, 2001 SC (PC) 89, [2001] 2 Cr App R 27, 2001 GWD 6-206, [2001] HRLR 20, 2001 SLT 304, 2001 SCCR 191, [2001] UKHRR 463
PC, PC, Bailii
Human Rights Act 1998, Proceeds of Crime (Scotland) Act 1995 3(2)
Scotland
Citing:
Appeal fromMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .

Cited by:
CitedRegina v Rezvi HL 24-Jan-2002
Having been convicted of theft, a confiscation order had been made against which the appellant appealed. The Court of Appeal certified a question of whether confiscation provisions under the 1988 Act were in breach of the defendant’s human rights. . .
Appealed toMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .
CitedLloyd v Bow Street Magistrates Court Admn 8-Oct-2003
The defendant had been convicted and made subect to a confiscation order in 1996. A final order for enforcement was made in late 2002. The defendant said the delay in the enforcement proceedings was a breach of his right to a trial within a . .
CitedPeacock, Re SC 22-Feb-2012
The defendant had been convicted of drugs offences, and sentenced under the 1994 Act. The gains he had made exceeded his then assets. Later he acquired further property honestly, and the Court now considered whether those assets could be taken to . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.163307

Mearns v Smedvig Limited and others: SCS 25 Nov 1998

‘A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science.’
Lord Eassie
[1998] ScotCS 76
Bailii
Scotland
Cited by:
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.163392