Dr Adoko v Jemal: CA 22 Jun 1999

Where a notice of appeal had been lodged, which was intended to be against the order of one judge, but was in terms identifying a different court, and ample opportunity had been given to amend it after the mistake had been pointed out, the Court of Appeal would not allow an amendment at the hearing. Much court time had been wasted because papers were not in order.

Citations:

Times 08-Jul-1999, [1999] EWCA Civ 1643

Jurisdiction:

England and Wales

Defamation, Litigation Practice

Updated: 21 January 2023; Ref: scu.146558

Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999

In a malicious prosecution case, there is no automatic right to have it tried before a jury. If that is to be applied for, the application must be made at the earliest possible directions hearing. Where, as in this case other factors suggested that a jury trial is not appropriate, then one need not be ordered.

Citations:

Times 07-Jul-1999, [1999] EWCA Civ 1656

Statutes:

County Courts Act 1984 66

Jurisdiction:

England and Wales

Litigation Practice, Torts – Other

Updated: 21 January 2023; Ref: scu.146571

Themehelp Ltd v West and Others: CA 2 May 1995

Guarantor’s obligations not affected save by matters outside the guarantee. The beneficiary of a guarantee was restrained from enforcement of it whilst an allegation of fraud remained unresolved.

Citations:

Ind Summary 26-Jun-1995, Times 02-May-1995

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 21 January 2023; Ref: scu.89853

Matthews v Tarmac Bricks and Tiles Limited: CA 14 Jun 1999

Where parties wished to fix court dates to suit their own convenience, there is a duty on them, under the new rules, to co-operate in order to allow the matter to proceed quickly, and, where a date became unavailable, they were to provide convincing reasons for such unsuitability.

Citations:

Gazette 14-Jul-1999, Times 01-Jul-1999, [1999] EWCA Civ 1574

Jurisdiction:

England and Wales

Litigation Practice

Updated: 21 January 2023; Ref: scu.135837

Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999

The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable.

Citations:

[1999] EWCA Civ 1528

Jurisdiction:

England and Wales

Citing:

CitedArab Monetary Fund v Hashim and Others (Number 9) ChD 29-Jul-1994
There were two foreign defendants who were each liable to the plaintiff.
Held: The English court had jurisdiction to allocate the damages between them. Execution should not be stayed because the plaintiff should be allowed to retain the . .
See AlsoKuwait Oil Tanker Co SAK and Another v Al Bader and Others (No 2) ComC 19-Dec-1995
ComC Leave to serve writ outside jurisdiction under RSC Ord 11 r1(1)(c) – whether required to serve on another defendant before leave obtained – retrospective validation . .
See AlsoKuwait Oil Tanker Company S A K ; Sitka Shipping Incorporated v Al Bader; Qabazard and Stafford CA 24-Mar-1997
. .

Cited by:

See AlsoKuwait Oil Tanker Company SAK and Another v Al Bader and Others CA 18-May-2000
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure . .
CitedKuwait Oil Tanker Company Sak and Another v Al Bader and others ComC 17-Oct-2008
The claimants had succeeded in an action based on fraud, and now sought to enforce their judgment. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2023; Ref: scu.146443

Worldwide Corporation Limited v Marconi Communications Ltd (Formerly Gpt Limited) and Gpt (Middle East) Limited: CA 21 Jun 1999

Counsel, giving assurances in open court on behalf of his client, bound that client. This applied even though counsel might have been negligent, and / or might, in turn, be immune from suit. Courts must be able to rely, and act, upon assurances given by counsel. Decisions may be made as part of a litigation strategy which cannot be unwound.

Citations:

Gazette 14-Jul-1999, Times 07-Jul-1999, [1999] EWCA Civ 1636

Jurisdiction:

England and Wales

Citing:

CitedArthur J S Hall and Co (A Firm) v Simons etc CA 14-Dec-1998
The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 21 January 2023; Ref: scu.90611

Practice Direction (Court of Appeal: Citation of Authority): CA 23 Jun 1995

The direction gives precise guidance for citing cases before the Court of Appeal. Practitioners are to use Weekly Law reports citations first wherever available.

Citations:

Ind Summary 17-Jul-1995, Times 23-Jun-1995

Jurisdiction:

England and Wales

Cited by:

CitedGovernor and Company of the Bank of Scotland v Henry Butcher and Co and others CA 13-Feb-2003
The court fiercely criticised the failure of the defendant’s solicitors to follow the practice directions and to use references to the Weekly Law Reports wherever possible as citations. The court had been badly hampered in its hearing by that and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2023; Ref: scu.84861

Liddell v Middleton: CA 17 Jul 1995

A husband and wife crossed a road. The wife, appreciating that the danger from the traffic, ran across. The husband stood in the middle of the road and then went ahead, but was struck by a vehicle and injured. He was significantly affected by alcohol, and evidence had been led at the trial indicating the effect of alcohol on accident statistics, particularly relating to men. The judge concluded that the husband was 25 per cent to blame for the accident.
Held: The driver’s appeal succeeded to the extent that the plaintiff was 50% responsible for his injuries.
Stuart-Smith LJ considered the correct approach to the fact that the husband had been affected by alcohol in the context of the issue of apportionment. He replied to a submission which sought to equate the approach to a drunken driver to the situation of a drunken pedestrian, as follows: ‘That may be so in the case of a driver who puts himself in the control of an object which is capable of great damage if it is not properly controlled, but I am not persuaded that it makes a significant difference in this case in the case of a pedestrian. It seems to me that the pedestrian’s conduct has to be judged by what he did rather than the explanation as to why he did it.’ Having referred to the statistical information which had been before the judge, he said: ‘The result of that statistical survey is no doubt a matter of expert knowledge not available to a layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it.’
As to the test of admissibility laid down in the 1972 Act 1972: ‘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’.
Stuart-Smith LJ laid 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’.

Judges:

Stuart-Smith, Peter Gibson and Hutchison LJJ

Citations:

Times 17-Jul-1995, (1996) PIQR 36

Statutes:

Law Reform (Contributory Negligence) Act 1945 1(1), Civil Evidence Act 1972

Jurisdiction:

England and Wales

Cited by:

CitedBailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
CitedLunt v Khelifa CA 22-May-2002
The claimant pedestrian had been injured when hit by a car driven by the defendant as she stepped into the roadway. Both parties appealed against the assessment of contributory negligence. The claimant had a blood alcohol level three times that . .
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Negligence, Personal Injury

Updated: 21 January 2023; Ref: scu.83063

Gardner v Southwark London Borough Counci (No 1); King v East Cambridgeshire District Council etc: CA 18 Jan 1996

It was not an abuse of process, to restart a claim within the limitation period after an automatic striking out of an earlier action. Millett LJ referred to the ‘same dilatory progress’ all the parties to the action continued to make after the guillotine date. Sir Thomas Bingham MR said: ‘I would add only this by way of footnote. If a plaintiff whose first action is automatically struck out under Ord.17,r.11(9) is subject to an order for costs and brings a second action within the limitation period, it is certainly open to the defendant in that second action to seek an order that the second action be stayed until the costs of the first action are duly met. That is not a ground upon which the plaintiff can be precluded from bringing the second action, but it may, in my judgment, afford grounds upon which he may be restrained from pursuing it until he has paid his debts.’

Judges:

Millett LJ, Sir Thomas Bingham MR

Citations:

Times 18-Jan-1996, Gazette 21-Feb-1996, [1996] 1 WLR 571

Statutes:

County Court Rules 1981 17(11)

Jurisdiction:

England and Wales

Cited by:

CitedDowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
CitedReville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
CitedWorldwide Corporation Limited v GPT Limited and GPT (Middle East) Limited CA 2-Dec-1998
Reasons for dismissal of application for leave to appeal – refusals of leave to amend particulars. The court must take into account the public interest in the efficient administration of justice which may be damaged by the disruption and delay . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 January 2023; Ref: scu.80752

Forward v West Sussex County Council and Others: CA 6 Jul 1995

Service by post at the last known address of a defendant is not deemed effective if the defendant can show that he did not actually receive it.

Citations:

Ind Summary 31-Jul-1995, Times 06-Jul-1995

Statutes:

Rules of the Supreme Court Order 10 r1

Jurisdiction:

England and Wales

Litigation Practice

Updated: 21 January 2023; Ref: scu.80644

Heer v Tutton and Another; Pickles v Holdsworth; Lovell v Porter: CA 5 Jun 1995

An agreement between the parties to extend the time for filing a defence, ousts the automatic striking out rules.

Citations:

Times 05-Jun-1995, Ind Summary 03-Jul-1995

Statutes:

County Court Rules 1981

Jurisdiction:

England and Wales

Litigation Practice, Litigation Practice

Updated: 21 January 2023; Ref: scu.81301

Barclays Bank Plc v Piper: CA 23 May 1995

Exact rules for affidavits must be followed on Order 14 proceedings. The solicitor swearing an affidavit on behalf of the bank had not disclosed the source of his information. Though the defect might be technical, the defendant was being deprived of his right to cross examine the witness and of his right to defend, and the rules must be strictly complied with.

Citations:

Independent 23-May-1995, Times 31-May-1995, [1995] CLY 4228

Statutes:

Rules of the Supreme Court Order 14

Jurisdiction:

England and Wales

Litigation Practice

Updated: 21 January 2023; Ref: scu.78214

Cox v Bankside Members Agency Ltd and Others: CA 16 May 1995

Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s liability to the third party has not yet been established. In handling claims, instructing solicitors and so forth, the insurers act as agents for the company and are entitled to reimbursement for their expenses.
Lord Justice Saville said: ‘Under the Act the rights of the insured against the insurer are transferred to the third party on (in the case of an insured company) the making of a winding up order etc.: see s.1(b) of the Act. It follows from this that a statutory transfer can take place before the obligation of the insurer to pay arises i.e. before the liability of the insured has been established. In such an event, since it is clear from the authorities that the third party is to be put in no better position than the insured, the third party does not obtain the right to immediate payment until the liability of the insured is established. .
That right [the right of the third party to immediate payment by the insurers] only arises when, in each case, the claim is established, just as that right, while owned by the insured, would also arise only when the particular claim in question was established. It is only when that right arises that the insurers come under the correlative obligation to make payment. To my mind it follows that as each claim is established (whether before or after the statutory assignment), the right to payment arises and thus the amount of available insurance is in effect diminished, so that when it is exhausted later established claims have no right to an indemnity. . .’

Judges:

Lord Justice Saville

Citations:

Independent 09-Jun-1995, Times 16-May-1995, [1995] 2 Lloyd’s Rep 437

Statutes:

Third Parties (Rights Against Insurers) Act 1930 1(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal fromCox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .

Cited by:

CitedAXA Reinsurance (UK) Plc v Field HL 12-Sep-1996
The terms originating ’cause’ and ‘event’ are to be differently construed, one means a continuing situation and the other refers to a discrete event.
Under the ‘LMX Spiral’ Lloyds’ syndicates wrote substantial excess of loss business.The cross . .
CitedLloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Dicta adoptedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedFreakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar CA 11-Feb-2005
Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company . .
CitedFreakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insurance, Legal Professions

Updated: 21 January 2023; Ref: scu.79585

TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd and Others: CA 2 Jul 2020

Third in a rapid succession of Court of Appeal cases concerning the effect of the automatic stay imposed by Practice Direction 51Z

Judges:

Sir Geoffrey Vos, Chancellor of the High Court

Citations:

[2020] EWCA Civ 833

Links:

Bailii

Statutes:

Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020

Jurisdiction:

England and Wales

Litigation Practice

Updated: 31 December 2022; Ref: scu.652316

Fatima v Family Channel Ltd and Another: CA 1 Jul 2020

Appeal from judgment after trial judge proceeded with trial the defendant absent, and another Judge acceded to request for judgment to be set aside.
Held: The decision was restored. Appellate courts should be slow to overturn a judge’s decision to refuse or allow an application to set aside using CPR r 39.3 without being satisfied that the judge has been wrong in principle. No judicial comity required the judge hearing the application under CPR r 39.3(3) to follow the trial judge, and a judge hearing the application under CPR r 39.3(3) might reach a different decision on the same facts. The approach of the judge in the present case was therefore flawed.

Judges:

Lewison, Popplewell, Carr LJJ

Citations:

[2020] EWCA Civ 824, [2020] WLR(D) 380

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Litigation Practice

Updated: 31 December 2022; Ref: scu.652309

Siddiqui v University of Oxford: QBD 5 Dec 2016

The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was bound to fail was refused. Nor was the claim bound to fail under limitation difficulties. Application refused

Judges:

Kerr J

Citations:

[2016] EWHC 3150 (QB)

Links:

Bailii

Statutes:

Limitation Act 1980 14(1)(b)

Jurisdiction:

England and Wales

Citing:

CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedClark v University of Lincolnshire and Humberside CA 14-Apr-2000
A student had been failed after being falsely accused of cheating, but the academic review board, on remarking the paper marked it as zero.
Held: Where a University did not have the supervisory jurisdiction of a visitor, a breach of contract . .
CitedPhelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
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 . .
CitedAbramova v Oxford Institute of Legal Practice QBD 18-Mar-2011
The claimant sought damages saying that the defendant had failed to provide her with the Legal Practice Course promised. The complaints included, in particular, an attack on the practice of having students mark their own mock examination papers.
CitedWinstanley v Sleeman and Another QBD 13-Dec-2013
The claimant’s PhD thesis had initially failed, but on an internal appeal that decision was reversed, the appellate body accepting the contention that the supervision or other arrangements during his period of study had been unsatisfactory. The . .
CitedSpargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
CitedMinistry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
CitedCave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
See AlsoSiddiqui v University of Oxford QBD 2016
Kerr J refused an application for him to recuse himself based inter alia on the fact that counsel for the Defendant before him was a member of his former chambers: ‘It is true that I was a member of the same chambers of Mr Milford until June 2015. . .

Cited by:

See AlsoSiddiqui v The Chancellor, Masters and Scholars of The University of Oxford QBD 7-Feb-2018
. .
See AlsoSiddiqui v University of Oxford QBD 16-Mar-2018
Post judgment issues . .
Lists of cited by and citing cases may be incomplete.

Negligence, Education, Litigation Practice, Limitation

Updated: 31 December 2022; Ref: scu.572350

Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd: CA 1951

Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the passing of the Act, ‘so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof’. The term ‘commencement’ was defined by section 36 as meaning ‘the time at which the Act comes into operation’.
Held: The power conferred by section 37 was not confined to bringing the Act ‘into operation’ in the sense of bringing it into legal force, but extended to taking measures which would enable the Act to operate in practice. Section 37 gave power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation.

Judges:

Tucker, Asquith, Jenkins LJJ

Citations:

[1951] 1 KB 1

Statutes:

Interpretation Act 1889 37

Jurisdiction:

England and Wales

Cited by:

CitedRM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 20 December 2022; Ref: scu.470870

Overton v Swettenham And Another: 8 May 1837

Upon a writ of false judgment from a county court, the sheriff’s return of his proceedings appearing to be no more than minutes, and not full entries of the pleadings, the Court made absolute a rule calling on the sheriff to complete the entries, or to state what was understood by them.

Citations:

[1837] EngR 726, (1837) 3 Bing NC 786, (1837) 132 ER 613

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 December 2022; Ref: scu.313843

Underwood v Jee, Smith v Jee: 27 Mar 1849

Two creditors’ bills were filed, The first alleged that the Defendant (who was the debtor’s widow and personal representative) had carried on the debtor s trade since his decease, and prayed for an account of the profits: the second prayed merely for the common relief. The Court held that there was an important difference in favour of the first suit, and refused to stay the proceedings in it, notwithstanding a decree had been obtained in the second.

Citations:

[1849] EngR 428, (1849) 17 Sim 119, (1849) 60 ER 1073

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency, Litigation Practice

Updated: 20 December 2022; Ref: scu.298733

Howell and others v Lees Millais and others: CA 4 Jul 2007

Appeal against refusal of judge to recuse himself after acrimonuious correspondence between judge and other members of the claimant’s solicitors firm who now asserted apparent bias.

Judges:

Sir Anthony Clarke MR

Citations:

[2007] EWCA Civ 720

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 20 December 2022; Ref: scu.254542

Hall and others v Save Newchurch Guinea Pigs (Campaign) and others: QBD 17 Mar 2005

The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
Held: The claimants had been subjected to a long and sustained campaign of harassment by the defendant organisation and its associates. The court would grant an injunction. An order establishing an exclusion zone however should only be made where an injunction had been tried and had failed. The powers inherent in the police had been inadequate to prevent the harassment, and it was correct to invoke the 1997 Act. Injunctive relief should be no wider than was shown to be necessary.

Judges:

Owen J

Citations:

[2005] EWHC 372 (QB), Times 07-Apr-2005

Links:

Bailii

Statutes:

Protection from Harassment Act 1997 3, Supreme Courts Act 1981 37(1)

Jurisdiction:

England and Wales

Citing:

CitedAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
CitedCream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
CitedMillman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.223863

Saltman Engineering Co v Campbell Engineering Co Ltd: CA 1948

The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to make leather punches, on their own account. The finished product (i.e. the leather punches) were readily available to buy in the shops; and the defendants could have bought one and reverse engineered it. But they did not.
Held: Equity will protect trade secrets that have been divulged in breach of a confidential relationship, but the obligation not to use confidential information attaches only to information which has the necessary element of confidentiality and continues only so long as the information remains confidential.
Lord Greene MR said: ‘The defendants knew that those drawings had been placed in their possession for a limited purpose, namely, the purpose only of making certain tools in accordance with them, the tools being tools required for the purpose of manufacturing leather punches . . I need not go into the law, which I think is correctly stated in a formula which Mr Heald himself accepted. I will read it: ‘If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.” and
‘I think that I shall not be stating the principle wrongly if I say this with regard to the use of confidential information. The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process.
What the defendants did in this case was to dispense in certain material respects with the necessity of going through the process which had been gone through in compiling these drawings, and thereby to save themselves a great deal of labour and calculation and careful draftsmanship. No doubt, if they had taken the finished article, namely, the leather punch, which they might have bought in a shop, and given it to an expert draftsman, that draftsman could have produced the necessary drawings for the manufacture of machine tools required for making that particular finished article. In at any rate a very material respect they saved themselves that trouble by obtaining the necessary information either from the original drawings or from the tools made in accordance with them. That, in my opinion, was a breach of confidence.’

Judges:

Lord Greene MR

Citations:

[1948] 65 RPC 203

Jurisdiction:

England and Wales

Cited by:

CitedVenables and Thompson v News Group International, Associated Newspapers Ltd, MGN Ltd QBD 4-Dec-2001
An order had been made requiring all newspapers not to publish anything which might lead to the identification of the claimants or their whereabouts. The defendant newspaper published information as to their last known whereabouts. They argued that . .
CitedArklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
AppliedSuhner and Co AG v Transradio Ltd 1967
The claimants complained at the defendant having registered a company under the name ‘Suhner’. The defendants gave no justification for using the word ‘Suhner’ as part of their name. They claimed that they had the right to form a company in order to . .
CitedEPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
CitedHome Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
CitedCoco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedLondon Regional Transport, London Underground Limited v Mayor of London Transport for London CA 24-Aug-2001
The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. . .
CitedMersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 20 December 2022; Ref: scu.182937

Burris v Azadani: CA 27 Jul 1995

The court addressed the principles upon which a Court will grant interlocutory injunctive relief in harassment cases.
Held: Both the High Court and the County Court had jurisdiction under the 1981 and 1984 Acts to grant interlocutory injunctions in wide terms to restrain conduct that was not in itself tortuous or otherwise unlawful, if such order was reasonably to be regarded as necessary for the protection of a plaintiff’s legitimate interest. The court has power to impose an exclusion zone when granting a non-molestation injunction restraining harassment of the victim by the defendant, provided no unnecessary restraint was placed on the defendant. It would not seem to me to be a valid objection to the making of an exclusion zone order that the conduct to be restrained is not in itself tortuous or otherwise unlawful, if such an order is reasonably regarded as necessary for the protection of a plaintiff’s legitimate interest’ and ‘Neither the statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.’
An injunction was granted excluding the defendant from an area. It was recognised that an exclusion zone may have the effect of restraining conduct not in itself tortious – e.g. travelling along a public highway – but such a restraint maybe imposed if it reasonably regarded as necessary for the protection of a plaintiff’s legitimate interests.

Judges:

Sir Thomas Bingham MR

Citations:

Times 09-Aug-1995, [1995] 4 All ER 802, [1995] 1 WLR 1373, [1995] EWCA Civ 50

Links:

Bailii

Statutes:

Supreme Court Act 1981 37(1), County Courts Act 1984 38

Jurisdiction:

England and Wales

Cited by:

CitedHuntingdon Life Sciences Limited v Curtin; Watson; British Union for Abolition of Vivisection; Animal Liberation Front; Animal Rights Coalition and London Animal Action CA 15-Oct-1997
The various defendants were accused of protesting repeatedly at the activities of the claimants, who sought orders under the Act to stop their protests as harassment.
Held: The Act was misused by trying to use it outside the areas intended; . .
CitedHuntingdon Life Sciences Group Plc Huntingdon Life Sciences Limited, Brian Cass (for and on Behalf of the Employees of the First Claimant Pursuant To Cpr Part 19.6) v Stop Huntingdon Animal Cruelty QBD 28-May-2004
The claimant companies conducted forms of medical research to which the respondents objected, and showed their objections by a wide variety of acts and threats which the claimants sought to have stopped. The defendants sought discharge of an interim . .
CitedUniversity of Oxford and others v Broughton and others QBD 10-Nov-2004
The claimants sought injunctions to protect themselves against the activities of animal rights protesters, including an order preventing them coming with a wide area around the village.
Held: The orders made were justified with the additional . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Contempt of Court

Updated: 20 December 2022; Ref: scu.182287

Danemark Limited v BAA Plc: CA 16 Oct 1995

The defendant had obtained an order or additional security for costs against the defendant company (registered with andpound;100 share capital) under the section. It appealed. There was evidence to suggest some fraud by the plaintiff, but also that there was a genuine claim. The court had a difficult balance to draw between stifling a proper claim by a small company and putting the defendant at risk of incurring costs the plaintiff could not meet. The judge had erred, and the security order was vacated.

Citations:

[1995] EWCA Civ 6

Links:

Bailii

Statutes:

Companies Act 1985 726(1)

Jurisdiction:

England and Wales

Citing:

AppliedKeary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Lists of cited by and citing cases may be incomplete.

Company, Costs, Litigation Practice

Updated: 20 December 2022; Ref: scu.140365

Mauthoor v THF Delap and Associates Limited: CA 2 Oct 1995

The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as to the sale of the company and actions which would threaten the vue of the company. The amendment was not allowed. She appealed.
Held: Courts set out to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases. Whether an amendment should be granted is in the trial judge’s discretion, guided by his assessment of where justice lays. In this case the discretion had not been wrongly exercised.

Judges:

Lord Justice Staughton Lord Justice Swinton Thomas Lord Justice Judge

Citations:

[1995] EWCA Civ 5

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCropper v Smith CA 1883
Bowen LJ: ‘Now it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their . .
CitedKetteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .

Cited by:

CitedAli v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 20 December 2022; Ref: scu.140364

Calcraft v Guest: CA 1898

A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The papers included proofs of witnesses. The papers had been prepared on behalf of John Calcraft, a predecessor in title of the plaintiff. The defendant was allowed to inspect them and copies were handed to the defendant by the grandson of the late Mr Calcraft’s solicitor, in each case without any authority. On the appeal, there were two questions: first, whether the documents were privileged, and, second, whether the appellant could give secondary evidence of their contents.
Held: If a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means They remained privileged: ‘once privileged always privileged’ However, notwithstanding the privilege, the appellant could give secondary evidence of their contents.

Citations:

[1898] 1 QB 759

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
ExplainedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedMcE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
AppliedGoddard 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, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 20 December 2022; Ref: scu.181101

Koch Shipping Inc v Richards Butler (a Firm): CA 22 Jul 2002

The claimants in an arbitration sought orders with regard to a solicitor who had moved to the opponent’s firm of solicitors, but who came with privileged knowledge of the claimant’s business dealings. She offered undertakings, but the claimant viewed these as inadequate. The respondent firm of solicitors appealed an order to withdraw from the action.
Held: Each such case must turn on its facts. Here there was no reason to doubt the high professionalism, skills and integrity of the solicitor in question. The situation differed from that in Bolkiah. It was fanciful to imagine her inadvertently letting something slip to the detriment of the claimant.
Tuckey LJ warned that: ‘In these days of professional and client mobility it is of course important that client confidentiality should be preserved. Each case must depend on its own facts but I think there is a danger inherent in the intensity of the adversarial process of courts being persuaded that a risk exists when, if one stands back a little, that risk is no more than fanciful or theoretical. I advocate a robust view with this in mind so as to ensure the line is sensibly drawn.’

Judges:

Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke

Citations:

Times 21-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 1280, [2002] 2 All ER Comm 957, [2002] 1 PNLR 603, [2002] Lloyd’s Rep PN 604

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedPrince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
CitedYoung, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .

Cited by:

CitedGUS Consulting Gmbh v Leboeuf Lamb Greene and Macrae CA 26-May-2006
The claimant brought an action to restrain the lawyer defendants from acting in arbitration for having previously acted for other parties.
Held: The claimant’s appeal for an injunction failed. Following Bolkiah, the burden on the defendants . .
CitedWinters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
CitedStiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
CitedCaterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
CitedAlbion Plc v Walker Morris (A Firm) CA 19-Mar-2006
The court was asked whether defendant firm of solicitors should be prevented from acting for potential conflict of interest. They sought leave to appeal an order restraining them from acting. They had acted in two similar matters for the client . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 20 December 2022; Ref: scu.174716

Rowe v Glenister and Others: CA 7 Aug 1995

Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking a striking out for delay must also show some post-writ prejudice caused by the delay.

Citations:

Times 07-Aug-1995, Ind Summary 11-Sep-1995

Jurisdiction:

England and Wales

Cited by:

See AlsoGlenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 20 December 2022; Ref: scu.88878

Kelsey Housing Association Ltd v King and Another: CA 8 Aug 1995

The Court dismissed an appeal from a decision to dispense with notice under the section. A notice to quit had been served and a summons for possession issued with an appendix containing details of the allegations of breach of the tenancy agreement and nuisance.Only much later was an application was made to dismiss the proceedings on the grounds that the notice did not comply with section 8. The judge ruled that the particulars in the notice were inadequate but dispensed with the need for a notice under section 8(1)(b). In considering the words ‘just and equitable’ the court referred to judgments considering those same words in the context of the Rent Act 1977, which emphasised the necessity to ‘consider all the circumstances’. Every case will depend upon its own facts and the pleaded ground or grounds relied on in the notice. The court must take all the circumstances into account, both from the view of the landlord and the tenant, and decide whether it is just and equitable to dispense with the required particulars.

Judges:

Aldous LJ, Butler-Sloss LJ

Citations:

Times 08-Aug-1995, Ind Summary 28-Aug-1995, (1995) 28 HLR 270

Statutes:

Housing Act 1986 8(1)(b)

Jurisdiction:

England and Wales

Cited by:

CitedKnowsley Housing Trust v Revell; Helena Housing Ltd v Curtis CA 9-Apr-2003
The local authority landlord commenced proceedings for possession, but then transferred the properties to a registered social landlord. The tenants objected that the new landlords could not continue the proceedings.
Held: The transfer moved . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Housing

Updated: 20 December 2022; Ref: scu.82720

Connelly v RTZ Corporation Plc: CA 29 Sep 1995

Availability of legal aid to a party is not a relevant consideration to rules of forum non conveniens.

Citations:

Independent 29-Sep-1995, Times 20-Oct-1995

Jurisdiction:

England and Wales

Cited by:

Appeal fromConnelly v RTZ Corporation Plc and others HL 24-Jul-1997
The availability of legal aid to a party is not part of criteria for choosing jurisdiction save in exceptional circumstances.
Lord Goff discussed the Spiliada case: ‘the burden of proof rests on the defendant to persuade the court to exercise . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction, Legal Aid

Updated: 20 December 2022; Ref: scu.79443

Ashford Hotels Ltd v Higgins and Others: CA 14 Aug 1995

An order for Security for costs was possible even where the trial may yet proceed in a foreign jurisdiction. Even though the court had jurisdiction over the defendants, a court could stay an action to allow an action to proceed abroad if that would be more appropriate.

Citations:

Ind Summary 14-Aug-1995

Jurisdiction:

England and Wales

Litigation Practice, Costs

Updated: 20 December 2022; Ref: scu.77894

Spy Academy Ltd v Sakar International Inc: CA 23 Jul 2009

Claimant’s appeal against order for security for costs. An order had been returned having been sent to the correct address, but to the wrong person, it was returned. On the claimant appearing by its director the judge made the order.
Held: The judge had not given proper weight to the claimant’s reasons for the return of the order, and appeared to have prejudged the claim. The appeal succeeded. On balancing the factors outlined in Keary, the claimant’s case should not be stifled.

Judges:

Sedley LJ, Sir Simon Tuckey

Citations:

[2009] EWCA Civ 985

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedKeary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.375601

The Honourable Caroline Graves v Browning, A Prisoner: 8 May 1837

In an affidavit of debt, deponent described himself only as ‘acting as managing clerk ‘ to plaintiff’s attorney, whose place of business was named : Held, insufficient

Citations:

[1837] EngR 731, (1837) 6 Ad and E 805, (1837) 112 ER 309

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 December 2022; Ref: scu.313848

Pocock v O’Shaunessy, Smith, Francis, And Bacon: 8 May 1837

Where plaintiff has failed against one of two defendants, and succeeded against the other, the successful defendant’s costs will be set off against the costs of the plaintiff without regard to the alleged lien of such plaintiff’s attorney, under Reg. Gen. Hil. 2 W. 4, I. 93, if it be shewn that the attorney is, substantially, the plaintiff in the cause.

Citations:

[1837] EngR 727, (1837) 6 Ad and E 807, (1837) 112 ER 310

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 December 2022; Ref: scu.313844

Evans v CIG Mon Cymru Ltd: CA 18 Jan 2008

‘Shortly after the expiry of the limitation period, a claimant serves on a defendant, by post, a claim form and particulars of claim together with a schedule of losses and a medical report. The letter serving the documents, the particulars of claim and the medical report make it clear that the claim is intended to be for damages for an accident at work. By a clerical error, the claim form refers not to an accident at work but to ‘abuse’ at work.
The defendants’ solicitors spot the discrepancy. They argue that the intended action for damages for the accident at work cannot now proceed. Are they right in law? That in short is in the question before us. ‘

Judges:

Lord Justice Toulson

Citations:

[2008] EWCA Civ 390, [2008] 1 WLR 2675, [2008] PIQR P17

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Limitation

Updated: 20 December 2022; Ref: scu.267070

HM Attorney General v Foden: Admn 7 Apr 2005

Application for Civil Proceedings Order.
Held: ‘This defendant has become a compulsive litigant who has lost touch with reality. Her remorseless pursuit of litigation is wholly without merit, is clearly vexatious and has perpetrated a waste of scarce judicial resources needed for the determination of proper claims. Nothing in the documents put in by the defendant, including her affidavits, suggests otherwise. If anything they confirm it.’

Citations:

[2005] EWHC 1281 (Admin)

Links:

Bailii

Statutes:

Supreme Court Act 1981 42

Jurisdiction:

England and Wales

Citing:

CitedAttorney-General v Vernazza, In Re Vernazza CA 1959
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the . .
CitedAttorney General v Jones CA 1990
A section 42 order embraced applications to or in the Court of Appeal as well as below. A person against whom a vexatious litigant order was sought could not seek to argue anew the findings which had already been made against him by the courts in . .
CitedAttorney-General v Barker CA 16-Feb-2000
An order that someone be denied access to the courts save with consent of a judge was a challenge to that individual’s constitutional rights, and should only be made if the statutory pre-conditions are fulfilled. It had to be shown that the litigant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.228214

Cropper v Smith: CA 1883

Bowen LJ: ‘Now it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights . . I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace . . It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.’

Judges:

Bowen LJ

Citations:

(1883) 26 Ch D 700

Jurisdiction:

England and Wales

Cited by:

CitedMauthoor v THF Delap and Associates Limited CA 2-Oct-1995
The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.180938

Ketteman v Hansel Properties Ltd: HL 1987

Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical damage to the houses occurred, but when the plaintiffs became the owners of the houses with defective foundations, at which time they suffered economic loss because the houses were less valuable than they would have been if the foundations had been sound.
Held: As to the defendant’s argument, a building should not be considered to be ‘doomed from the start’, for purposes of statutes of limitation merely because it had a latent defect which must inevitably result in some damage at some later stage.
Lord Keith: ‘The proposition that a cause of action in tort accrued out of negligence resulting in pure economic loss was thought to be vouched by reference to Junior Books Ltd. v Veitchi Co. Ltd. 1983 1 AC 520. That case was cited in Pirelli in support of the argument that, since in that case there was economic loss when the chimney was built, the cause of action arose then. The argument was clearly rejected in the speech of Lord Fraser concurred in by all the others of their Lordships who participated in the decision. At p.16, he expressed the opinion that a latent defect in the building does not give rise to a cause of action until damage occurs. In the present case there can be no doubt that the defects in the houses were latent. No-one knew of their existence until damage occurred . . this branch of the argument for the architects is in my opinion inconsistent with the decision in Pirelli and must be rejected.’ and ‘Whatever Lord Fraser may have had in mind in uttering the dicta in question, it cannot, in my opinion have been a building with a latent defect which must inevitably result in damage at some stage. That is precisely the kind of building that Pirelli was concerned with, and in relation to which it was held that the cause of action accrued when the damage occurred. This case is indistinguishable from Pirelli and must be decided similarly.’ Lord Brandon: ‘The argument of counsel, as I understand it, proceeded as follows. Where a house was built on defective foundations, a buyer of it might suffer two kinds of damage. The first kind of damage was physical in the form of consequential structural failure or damage. The second kind of damage was economic loss, in the form of diminution in market value. In the case of the first kind of damage, the buyer’s cause of action against any party for negligence in respect of the defective foundations accrued when the consequential structural failure or damage occurred. But in the case of the second kind of damage, the diminution in market value was present from the time of the original construction, and it was at that earlier time that the buyers cause of action in respect of such diminution accrued. The plaintiffs in the present case had sued for the second kind of damage, namely diminution of market value. The causes of action had therefore accrued at the date when the houses were built. In my opinion this contention cannot be supported. I do not know what special cases Lord Fraser had in mind when he referred in his speech in Pirelli to buildings ‘doomed from the start’. It may be that he was only keeping open the possibility of the existence of such special cases out of major caution. Be that as it may, however I am quite sure that he was not seeking to differentiate between causes of action in respect of making good defects or damage on the one hand and the causes of action in respect of diminution in market value on the other . . . In my view there is nothing in the facts of the present case which would take it out of the general principle laid down in Pirelli . . ‘
The House outlined the practice to be followed in deciding whether to allow a statement of claim to be amended: ‘Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lays. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.’ The doctrine of relator back was disapporved. As to the addition of a defendant: (Lord Keith) ‘A cause of action is necessarily a cause of action against a particular defendant and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action.’
Lord Griffiths: ‘Whether an amendment should be ganted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lays. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.’

Judges:

Lord Keith of Kinkel, Lord Griffiths

Citations:

[1987] 2 WLR 312, [1987] AC 189

Jurisdiction:

England and Wales

Citing:

CitedJunior Books v Veitchi Co Ltd HL 15-Jul-1982
The defendant was a specialist sub-contractor brought in to lay a floor. In laying the composition floor the defenders used too wet a mixture and applied too thin a top coat and failed to cure the material properly. As a result cracks began to . .
OverruledMitchell v Harris Engineering Co Ltd CA 1967
The plaintiff was seeking to claim against his employers for personal injuries. There was correspondence with them before action that did not lead to a settlement. When the writ was issued a junior clerk made a mistake and issued it in the very . .
ApprovedLiff v Peasley CA 1980
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. . .

Cited by:

CitedMauthoor v THF Delap and Associates Limited CA 2-Oct-1995
The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as . .
CitedE I Du Pont de Nemours and Co v S T Dupont (2) ChD 22-Nov-2002
The parties had appeared before a hearing officer at the Trade Marks registry. The opponent of the registration sought leave to argue an additional point which, though unpleaded, could have been argued without any significant adjournment. The . .
CitedBarings Plc (In Liquidation) and Another, Barings Futures (Singapore) Pte Ltd (In Liquidation) v Coopers and Lybrand (A Firm) and Others, Mattar and 36 Others ChD 17-Oct-2003
BFS was a company incorporated in Singapore which conducted its internal affairs in Singapore Dollars. It was by statute required to render its accounts in that currency. It paid its staff in Singapore Dollars. It sought damages in Singapore . .
CitedParsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
CitedParsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
CitedAbbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
CitedSmithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
CitedLes Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 20 December 2022; Ref: scu.182324

Steans Fashions Ltd and Another v Legal and General Assurance Society Ltd: CA 31 Dec 1994

A company could be re-instated to the companies register retrospectively for the purposes of a court action. The case was suspended, and not to be struck-out, pending that re-instatement.

Citations:

Gazette 08-Feb-1995, Times 31-Dec-1994

Statutes:

Companies Act 1985 653

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 20 December 2022; Ref: scu.89523

Eurocross Sales Ltd and Another v Cornhill Insurance Plc: CA 5 Sep 1995

The company was in financial difficulties but not yet in liquidation. It sold its assets, including a claim against the defendant insurance company, to its principal shareholder Mr. Sood. The company’s action against the defendant was proceeding in the county court and the company had been ordered by the district judge to give security for costs. Mr. Sood applied under the County Court equivalent of R.S.C. Ord. 15, r. 6 to be joined as an additional plaintiff. The judge granted the order subject to a condition that Mr. Sood give security for costs in the sum of pounds 5,000. The reason he gave was that: ‘I think it is important that if the defendant is to be adequately protected here then Mr. Sood should be placed on terms similar to those of the order for security for costs against the plaintiff company . . Of course if he defaults on that, he does not join as a party to the action.’
Held: The court discharged the order. The question was whether it was appropriate for the judge to have exercised his discretion so that the defendant: ‘should enjoy the same protection against costs in relation to Mr. Sood as it already enjoyed against the plaintiff company under the unappealed order of the district judge.’ Sir Thomas Bingham M.R: this was not a proper ground upon which to exercise the discretion: ‘Cornhill is in no worse position than if the company had sold its business to Mr. Sood before bringing proceedings and he had been the plaintiff from the outset. It is in no worse a position than, instead of being joined, Mr. Sood had commenced a fresh action as a plaintiff. And the potential injustice against which the security order was intended to protect Cornhill no longer exists: the company’s action is stayed unless and until it provides the security ordered: but in Mr. Sood it faces a personal plaintiff who is liable to the extent of his available assets to meet any costs order made against him. Depending on his means, he may or may not be able to meet such an order, but the law affords a defendant no protection against costs which may not be paid by impecunious plaintiffs. Had Mr. Sood been ordered to pay, and give security for, the costs occasioned by or thrown away as a result of his joinder, there could in our judgment be no sustainable objection to the order. But we can find no justification for the order in fact made.’

Judges:

Sir Thomas Bingham MR, Auld and Ward LJJ

Citations:

Times 05-Sep-1995, [1995] 1 WLR 1517

Jurisdiction:

England and Wales

Cited by:

CitedNorglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.80380

A Local Authority v C and Others (Supplemental): CoP 26 Apr 2021

Judges:

Mr Justice Hayden VP CoP

Citations:

[2021] EWCOP 26

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoA Local Authority v C and Others CoP 26-Apr-2021
Care of 27 year old man with genetic disorder affecting his development. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2022; Ref: scu.662227

Curr v London and Country Mortgages: QBD 25 Jun 2020

Application by the Defendant for summary judgment under CPR 24.2, or alternatively for the claim to be struck out as an abuse of process, and for an Extended Civil Restraint Order against the Claimant.
Held: Summary judgment for the defendant but civil restraint order refused.

Judges:

Mrs Justice Andrews

Citations:

[2020] EWHC 1661 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 December 2022; Ref: scu.652128

Nottingham Building Society v Eurodynamics Systems plc: CA 1995

Dictum at first instance approved.

Citations:

[1995] FSR 605

Jurisdiction:

England and Wales

Citing:

Appeal fromNottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .

Cited by:

MentionedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 December 2022; Ref: scu.519749

Harrow London Borough Council v Donohue: CA 1995

The plaintiff complained at the defendant’s garage, half of which had been built on the plaintiff’s land. The judge had awarded damages in lieu of a mandatory injunction for its removal. The Council appealed.
Held: Where a landowner had been ‘totally dispossessed by the defendant’s ‘encroaching building’ the plaintiff was entitled ‘as of right to a mandatory order’ although it suggested that the court, depending on the circumstances, might ‘well retain a limited discretion’.

Judges:

Waite LJ, Hirst LJ, Sir Stephen Brown

Citations:

[1995] 1 EGLR 257

Jurisdiction:

England and Wales

Cited by:

CitedFeakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 12 December 2022; Ref: scu.237729

E (A Minor) v Dorset County Council: CA 1995

It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or is in any way sensitive to the facts, an order to strike out should not be made.’
Sir Thomas Bingham MR: ‘I would accept that certain elements pleaded as damage by Richard (for example the allegation that he suffered distress and that he is a shy, diffident person) cannot be compensated in damages, and similar points may be made about E’s claim that he was ‘upset’. It is also quite clear that none of the plaintiffs can recover damages for a congenital defect. If, however, a plaintiff can show (1) that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or education provision; (2) that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and (3) that this damage is not too remote I do not regard the claim for damage to be necessarily bad.’
Evans LJ: ‘In my judgment for the reasons given at the outset, the failure to treat or the delayed treatment of dyslexia does arguably give rise to a form of injury which can support a claim for damages for negligence in tort.’

Judges:

Sir Thomas Bingham MR, Evans LJ

Citations:

[1995] 2 AC 633

Jurisdiction:

England and Wales

Cited by:

CitedCarson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
CitedEquitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
CitedHowe and Co v Burden QBD 11-Feb-2004
Defence of consent – no strike out. The precise ambit of the defence of consent in a defamation case is best established at trial on the basis of the tribunal’s findings of fact. . .
CitedSkipper v Calderdale Metropolitan Borough Council and Governors of Crossley Heath School CA 15-Mar-2006
The claimant sought damages alleging that the defendants had failed her by not identifying and ameliorating her dyslexia whilst she was a student. The judge had found that she might establish negligence but that she had not established any loss. She . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 December 2022; Ref: scu.184852

The Ikarian Reefer: CA 1995

The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When questions of the credibility of witnesses who have given oral evidence arise the appellant must establish that the trial Judge was plainly wrong. Once again there is a long line of authority emphasizing the restricted nature of the Court of Appeal’s power to interfere with a Judge’s decision in these circumstances though in describing that power different expressions have been used.’

Judges:

Stuart-Smith LJ

Citations:

[1995] Lloyd’s Rep 455

Jurisdiction:

England and Wales

Citing:

CitedMersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
CitedSS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
CitedGlasier v Rolb 1889
A finding by a judge that a party is innocent of fraud should only reluctantly be disturbed. . .
CitedAkerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
See AlsoNational Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .

Cited by:

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. . .
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 . .
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 . .
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 . .
See AlsoComninos v Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA 12-Oct-1999
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 December 2022; Ref: scu.187256

Pitchmastic Plc v Birse Construction Ltd: QBD 8 Jun 2000

A party to litigation made an offer on the day before trial of settlement without prejudice save as to costs. At trial it made an open offer in similar terms which was rejected. After reading a draft unfavourable judgment, the party applied to be allowed to accept the offer, contending that such an offer was to remain open for 21 days in any event. The rules allowed a party to withdraw such an offer, and such situations must be decided by ordinary rules of offer and acceptance. The rules which apply to acceptance of a payment in do not necessarily apply to offers to settle. There is no rule requiring the permission of the court before allowing the withdrawal of an offer of settlement, and the test for whether such an offer remained capable of acceptance was the normal one of offer and acceptance.

Citations:

Gazette 08-Jun-2000, Times 21-Jun-2000

Statutes:

Civil Procedure Rules Part 36

Jurisdiction:

England and Wales

Litigation Practice, Costs, Litigation Practice

Updated: 12 December 2022; Ref: scu.84743

Mulder v Mason: CA 5 Dec 1995

The parties had been married. The plaintiff appealed conditions on an order reversing an order striking out his application with regard to the former matrimonial home, as being frivolous or vexatious. There had been long matrimonial proceedings, but the plaintiff claimed this claim for damages for breach of contract in letting the home was not associated with the divorce.
Held: The action was properly transferred to the county court, and on proper conditions as to payments in respect of costs.

Judges:

Judge J

Citations:

[1995] EWCA Civ 7

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 09 December 2022; Ref: scu.140366

Taylor v Anderton (Police Complaints Authority Intervening): CA 19 Jan 1995

Reports, which had been prepared for the purposes of a police complaint procedure, could be entitled to protection from disclosure under a public interest immunity certificate. The court also considered the relationship between the documentation and the decision as to whether a trial wasto be by judge alone, or with a jury. Cost is also a consideration: ‘The case as it stands will be very lengthy, very expensive, very burdensome and very difficult to control if tried by a judge alone. If tried by a judge and jury it will be even lengthier, even more expensive, even more burdensome and even more difficult to control.’ The fact that sight of a document for inspection may give the inspecting party a litigious advantage in the litigation does not of itself make production of the document unfair: ‘The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter’. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it, if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.’

Judges:

Sir Thomas Bingham MR, Rose, Morritt LJJ

Citations:

Independent 28-Feb-1995, Gazette 15-Mar-1995, Times 19-Jan-1995, [1995] 1 WLR 447

Jurisdiction:

England and Wales

Cited by:

CitedRight Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
CitedBranson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
CitedBrooker and Brooker v Chief Constable of Thames Valley Police CA 26-Oct-1998
The plaintiffs claimed damages against the respondents for wrongful arrest and false imprisonment. By mistake the defendants disclosed a letter from a senior officer supporting the allegation, despite which the Police Complaints Authority had denied . .
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Lists of cited by and citing cases may be incomplete.

Police, Defamation, Litigation Practice

Updated: 09 December 2022; Ref: scu.89742

International Bulk Shipping and Services Ltd v President of India and Another: CA 11 Dec 1995

Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5.
Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: ‘The rule refers to ‘the party intending to sue or.. intended to be sued’. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies’ rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase ‘correct the name of the party’ but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue.’

Judges:

Evans LJ

Citations:

Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017

Jurisdiction:

England and Wales

Citing:

AffirmedInternational Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .

Cited by:

CitedAdelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 09 December 2022; Ref: scu.82399

Grahan v Szerelmey (UK) Ltd and Another: CA 16 Nov 1995

Personal injury defendant claiming prejudice for delay must allow for his own profit in keeping his cash. Delay in personal injury cases rarely causes defendant any financial prejudice.

Citations:

Gazette 29-Nov-1995, Times 16-Nov-1995

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury

Updated: 09 December 2022; Ref: scu.80965

Barrow v Bankside Members Agency Limited: CA 10 Nov 1995

Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh proceedings against his members’ agent on a different ground. It was clear that this claim, even if made earlier, would not have been tried at the same time as the earlier action, since the scheduling of cases was the subject of detailed management by the Commercial Court.
Held: Lloyds litigation might allow exception to the Henderson rule to ensure that all claims were heard.
Bingham CJ said: ‘The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.’

Judges:

Lord Bingham CJ

Citations:

Times 10-Nov-1995, [1996] 1 WLR 257

Jurisdiction:

England and Wales

Citing:

CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

CitedJ A Pye (Oxford) Limited v South Gloucestershire District Council CA 26-Oct-2000
The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.78257

C (A Minor) v Hackney London Borough Council: CA 10 Nov 1995

The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res judicata.
Held: The child’s injuries from bad housing were a separate claim from those of her mother, and the action should proceed. The fact of the child’s disability meant that the erstwhile practice risked subverting CCR Ord 10 r10
Simon Brown LJ said: ‘I therefore reject entirely the submission that Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581 justifies extending the Talbot v. Berkshire County Council [1994] Q.B. 290 principle – that an unlitigated monetary claim is barred if it could have been advanced and established in earlier proceedings (itself to my mind an extended application of the res judicata doctrine) – to those not themselves party to the earlier proceedings.
It follows from all this that in my judgment the doctrine of res judicata even in its widest sense has simply no application to the circumstances of the present case and that the judge erred in ruling to the contrary. One does not, therefore, reach the point of asking here whether special circumstances exist to exclude it; C’s erstwhile solicitors’ suggested negligence is, frankly, an irrelevance. Nor, in my judgment, does this case come within measurable distance of any other form of abuse of process based on public policy considerations analogous to those underlying the res judicata doctrine: see, for instance, the Court of Appeal’s decision in Ashmore v. British Coal Corporation [1990] 2 Q.B. 338.
All that said, this judgment should not be taken as any encouragement to lawyers or their clients to follow the course in fact adopted here. As the judge rightly recognised, in circumstances such as these, it is plainly in the public interest to have a single action in which the claims of all the affected members of the household are included rather than a multiplicity of actions . . .’

Judges:

Simon Brown LJ

Citations:

Times 10-Nov-1995, [1996] 1 WLR 789

Jurisdiction:

England and Wales

Citing:

CitedYat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
CitedTalbot v Berkshire County Council CA 23-Mar-1993
In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .
CitedAshmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .

Cited by:

CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 09 December 2022; Ref: scu.78796

Attorney General v Hayward: CA 10 Nov 1995

The standard of proof in vexatious litigant proceedings is civil not criminal. Even so, because the fundamental rights of the subject are affected by the making of a civil proceedings order, there should be evidence placed before the court that the appropriate law officer has personally considered the papers and has personally authorised the making of the application.

Judges:

Pill J

Citations:

Times 20-Nov-1995

Statutes:

Supreme Court Act 1981 42

Jurisdiction:

England and Wales

Cited by:

CitedH M Attorney General v Foley and Foley CA 21-Aug-1997
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.77951