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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2021; Ref: scu.377214

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

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

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

Litigation Practice

Updated: 06 December 2021; Ref: scu.280170

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 06 December 2021; Ref: scu.178480

Bellenden (formerly Satterthwaite) v Satterthwaite: CA 1948

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

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

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.197924

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 06 December 2021; Ref: scu.82377

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

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

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

Prisons, Litigation Practice

Updated: 06 December 2021; Ref: scu.632678

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

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

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

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.512056

Halifax Building Society v Clark: ChD 1973

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

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

Land, Litigation Practice

Updated: 06 December 2021; Ref: scu.460847

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

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

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

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.417779

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

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

The Hon Mr Justice Jacob
Times 08-Oct-2002, [2002] EWHC 1984 (Ch)
Bailii
England and Wales
Cited by:
CitedSteadman-Byrne v Amjad and others CA 27-Jun-2007
In the course of a personal injury trial, the judge asked counsel to his room, where he said that having been conviced that the claimants were not lying, the defence had no prospect of success, and complained that ‘Insurance companies are trying to . .
CitedIA311012013 AIT 28-Aug-2014
The appelant had sought indefinite leave to remain. He now cmplained that the judge at the fisrt tire tribunal had made a remark at the outset suggesting that he had a closed mind or had already made up his mind. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Natural Justice

Updated: 06 December 2021; Ref: scu.177382

Carman v Yates: ChD 2005

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 06 December 2021; Ref: scu.242122

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 December 2021; Ref: scu.178367

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

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

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

Lists of cited by and citing cases may be incomplete.

Health, Children, Litigation Practice

Updated: 06 December 2021; Ref: scu.239293

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

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

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

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

Updated: 06 December 2021; Ref: scu.170064

Akhmedova v Akhmedov and Others: FD 28 Oct 2020

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

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

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

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.656328

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

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

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

Children, Litigation Practice

Updated: 06 December 2021; Ref: scu.450350

Akhmedova v Akhmedov and Others: FD 12 Jun 2020

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

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

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

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.655255

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

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

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

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 05 December 2021; Ref: scu.158983

Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1): CA 19 Dec 2002

Capacity for Litigation

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

Lord Justice Potter, Lord Justice Kennedy, Lord Justice Chadwick
Times 28-Dec-2002, [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5
Bailii
Civil Procedure Rules 21, Rules of the Supreme Court 80, Mental Health Act 1983
England and Wales
Citing:
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedRe Cumming CA 1852
Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his . .
CitedIn re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
CitedRe C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
CitedWhite v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
CitedW v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
CitedKirby v Leather CA 1965
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
CitedBall v Mallin HL 1829
A person must have the necessary mental capacity if he is to execute a voluntary deed. The House upheld a direction to the jury that what was required was that a person ‘should be capable of understanding what he did by executing the deed in . .
CitedCharles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
CitedMolton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
CitedDurham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
CitedImperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
CitedManches v Trimborn 1946
The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction. . .
CitedIn re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
CitedGibbons v Wright 1954
(High Court of Australia) Sir Owen Dixon discussed the principle that mental capacity at law varied with the transaction at issue: ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which . .
CitedMason v Mason 1972
The court considered the mental capacity required of somebody to give their consent to a decree of divorce. . .
CitedIn Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
CitedRe K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
CitedBeall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .
CitedHart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
CitedIn Re CAF 1962
When considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to the complexity and importance of that person’s property and affairs. . .
CitedIn re S (F G) (Mental Health Patient) 1973
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act . .

Cited by:
CitedPhillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
CitedDixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedSheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
See AlsoMasterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
CitedA v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
CitedE v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
CitedBailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
AppliedLindsay v Wood QBD 16-Nov-2006
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
CitedS v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
CitedIn re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
CitedMcFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
CitedHaithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
CitedDunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
CitedBailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
CitedDunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 05 December 2021; Ref: scu.178553

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Company, Torts – Other, Litigation Practice

Updated: 05 December 2021; Ref: scu.254549

Russell v Stubbs Limited: HL 3 Apr 1913

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

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

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

Lists of cited by and citing cases may be incomplete.

Scotland, Defamation, Litigation Practice

Updated: 05 December 2021; Ref: scu.236347

Beall v Smith: CA 6 Dec 1873

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 05 December 2021; Ref: scu.259623

Bank of England v Vagliano Brothers: HL 5 Mar 1891

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

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Constitutional

Updated: 04 December 2021; Ref: scu.464675

Broxton v McClelland: CA 31 Jan 1995

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

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

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

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 04 December 2021; Ref: scu.384387

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

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

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

Litigation Practice, Company

Updated: 04 December 2021; Ref: scu.77562

Harb v HRH Prince Abdul Aziz: ChD 9 Jun 2014

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

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

Constitutional, Litigation Practice

Updated: 04 December 2021; Ref: scu.526361

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

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

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

Insolvency, Litigation Practice

Updated: 04 December 2021; Ref: scu.526245

Lloyd v Google LLC: SC 10 Nov 2021

No damages for Loss of Control of Data

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

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

Information, Jurisdiction, Litigation Practice

Updated: 04 December 2021; Ref: scu.669785

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

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

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

International, Litigation Practice

Updated: 03 December 2021; Ref: scu.525615

Lakatamia Shipping Company Ltd v Su and Others: CA 14 May 2014

The claimant had obtained a freezing order in standard form against the defendant company. The Director of the company had similar sole positions in three other companies. The claimant obtained a similar order against the assets of the other companies, even though not directly parties to the action. The defendant appealed.
Held: The appeal failed. The assets of the company all of whose shares were owned by a defendant himself subject to a standard form freezing order might not be the assets of the defendant, for the purposes of the order, but the scope of such an order was to restrain him diminishing the value of any of his assets, which included his shareholding in such a company, and the order would therefore restrain him from procuring thosee companies making any disposition of assets likely to result in such a diminution.

Rimer, Tomlinson LJJ, Sir Bernard Rix
[2014] EWCA Civ 636, [2015] 1 WLR 291, [2014] WLR(D) 216, [2014] CP Rep 37, [2014] 1 CLC 688, [2014] 1 CLC 68
Bailii, WLRD
England and Wales
Citing:
SeeAlsoLakatamia Shipping Co Ltd v Su ComC 20-Mar-2014
. .

Cited by:
CitedJSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 December 2021; Ref: scu.525631

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 03 December 2021; Ref: scu.525626

Practice Guidance (Transparency In The Court of Protection): CoP 16 Jan 2014

[2014] EWCOP B2, [2014] COPLR 78
Bailii
Citing:
See AlsoCommittal for Contempt of Court (Practice Guidance) COP 3-May-2013
The court gave guidance on the practice to be followed on applications for committal for contempt of court in the Court of Protection, particularly as to the requirements for decisions to be made in public. . .
See AlsoPractice Guidance (Transparency In The Court of Protection) CoP 16-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 03 December 2021; Ref: scu.524665

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

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

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

Litigation Practice

Updated: 03 December 2021; Ref: scu.524651

Utilise TDS Ltd v Davies and Others: ChD 24 Feb 2014

The court was asked, as against the background of Mitchell, ‘if the breach of a court order attracting sanctions, considered in isolation, can be viewed as trivial, can another trivial breach of the same order result in the first breach being viewed as a non-trivial one? ‘

Hodge QC HHJ
[2014] EWHC 834 (Ch), [2014] 3 Costs LO 417
Bailii

Litigation Practice

Updated: 02 December 2021; Ref: scu.523721

Dar Al Arkan Real Estate Development Company and Another v Al-Sayed Bader Hashim Al Refai and Others: ComC 11 Apr 2014

Applications as to management of committal application. Andrew Smith J had ruled in favour of the applicant/defendant that without notice orders made against them should be discharged because the claimants had misled the court and failed to comply with undertakings given to the court in the court’s orders. Once the defendants had obtained this ruling, they applied for an order that the managing director of the first claimant be committed to prison.
Held: Having rejected the managing director’s account of how documents came to be deleted from certain hard drives which were to be preserved and delivered to the claimant’s solicitors as to which no full and honest explanation had been given. He accepted that the views he had formed had been formed on issues (quite possibly on all the issues) likely to be crucial on the committal application and that the evidence on the committal application was likely to be essentially the same as the evidence he had heard on the discharge application. In the light of these considerations he considered the claimants were entitled to have another judge to hear the contempt application.

Andrew Smith J
[2014] EWHC 1055 (Comm)
Bailii
Citing:
See AlsoDar Al Arkan Real Estate Development Company v Al Refai and Others ComC 12-Dec-2012
The defendants applied to set aside an earlier order made without notice, saying that the claimants had not make full and frank disclosure and misled the court in their evidence and submissions and had not complied with an associated undertaking to . .
See AlsoDar Al Arkan Real Estate Development Company (C) and Another v Al-Sayed Bader Hashim Al-Refai and Others QBD 20-Dec-2013
The defendants sought an order for the committal of officers of the clamant for having failed to comply with court orders and a preservation undertaking, saying that the claimant had destroyed evidence.
Held: The claimants said that such an . .

Cited by:
Appeal fromDar Al Arkan Real Estate Development Co and Another v Al Refai and Others CA 23-May-2014
The court considered the extra-territorial reach of proceedings for civil contempt against the director of a foreign company which has instituted proceedings in this jurisdiction but has not complied with an order of the court where the director is . .
CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Litigation Practice

Updated: 02 December 2021; Ref: scu.523699

Kershaw v Roberts (Representative of The Estate of Jones) and Another: ChD 10 Apr 2014

The parties were involved in litigation under the 1976 Act. The claiant now appealed against an order penalising him for failing to provide a costs budget. He said that it had not been a case management conference at which one was to be filed.

Hickinbottom J
[2014] EWHC 1037 (Ch), [2014] WLR(D) 168
Bailii
Inheritance (Provision for Family and Defendants) Act 1975, Civil Procedure Rules 8

Litigation Practice

Updated: 02 December 2021; Ref: scu.523660

Niche Products Ltd v Macdermid Offshore Solutions Llc: CA 13 Feb 2014

Application by the defendant for a stay of these proceedings for malicious falsehood pending the determination by this court of an appeal against a judgment and a consequential order refusing MacDermid’s application that the proceedings be struck out or alternatively for summary judgment.

Rimer, Kitchin LJJ
[2014] EWCA Civ 379
Bailii
England and Wales

Litigation Practice

Updated: 02 December 2021; Ref: scu.523343

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

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

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

Litigation Practice

Updated: 02 December 2021; Ref: scu.523350

Lincolnshire County Council v Mouchel Business Services Ltd and Another: TCC 21 Feb 2014

Stuart-Smith J
[2014] EWHC 352 (TCC)
Bailii
England and Wales
Cited by:
CitedLachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 December 2021; Ref: scu.523312

Mitchell v News Group Newspapers Ltd: QBD 27 Mar 2014

Application for discovery of documents held by a third party, the Police Complaints Commission) in a defamation action.

[2014] EWHC 879 (QB)
Bailii
England and Wales
Citing:
See AlsoMitchell v News Group Newspapers Ltd QBD 1-Aug-2013
The defamation claimant sought relief from sanctions imposed after a failure to comply with orders requiring him to discuss budgets and budgetary assumptions.
Held: The claimant had failed to deliver the required costs budget in time, and any . .
See AlsoMitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .

Cited by:
See AlsoMitchell v News Group Newspapers Ltd QBD 11-Jun-2014
. .
See AlsoMitchell v News Group Newspapers Ltd QBD 28-Jul-2014
The claimant MP had a bad tempered altercation with police officers outside Downing Street. He sued the defendant newspaper in defamation saying that they had falsely accused him of calling te officers ‘plebs’. One officer now sued the MP saying . .
See AlsoMitchell v News Group Newspapers Ltd QBD 31-Oct-2014
The claimant alleged defamation by the defendant. In the second action, the policeman claimant alleged defamation by the first claimant. The court heard applications as to the admission of expert evidence, and as to the inclusion or otherwise of . .
See AlsoMitchell v News Group Newspapers Limited QBD 27-Nov-2014
. .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 02 December 2021; Ref: scu.523307

Aria Inc and Another v Credit Agricole Corporate and Investment Bank and Another: ComC 7 Feb 2014

‘The claimants are asking the court to continue an injunction granted ex parte on notice on 8 October 2013, which restrains the first defendant, whom I shall refer to as ‘the Bank’, from making payment to the second defendant, whom I shall refer to as ‘WFS’, under a guarantee’

Leggatt J
[2014] EWHC 872 (Comm)
Bailii

Banking, Litigation Practice

Updated: 02 December 2021; Ref: scu.523285

Evans v The Information Commissioner and Others: CA 12 Mar 2014

Mr Evans had sought release under the 2000 Act of leers from the Prince of Wales to variou government ministers. The Upper Tribunal had allowed his appeal aganst refusal, but the Attorney had then issued a certificate that in his opinion, the information had been properly withheld. Mr Evans now appealed against refusal of judicial review of the certificate.
Held: The appeal succeeded. (i) the reasons given by the Attorney General were not capable of constituting ‘reasonable grounds’ within the meaning of section 53(2) of the FOIA 2000, and (ii) because the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with both Council Directive 2003/4/EC and article 47 of the EU Charter of Fundamental Rights.

Lord Dyson MR, Richards, Pitchford LJJ
[2014] EWCA Civ 253, [2014] Env LR 26, [2014] 3 All ER 682, [2014] 3 CMLR 12, [2014] 1 QB 855, [2014] WLR(D) 124, [2014] HRLR 12, [2014] 2 WLR 1334
Bailii, WLRD
Freedom of Information Act 2000 53(2), Council Directive 2003/4/EC, Charter of Fundamental Rights of te European Union 47, The Environmental Information Regulations 2004
England and Wales
Citing:
Appeal fromEvans, Regina (on The Application of) v HM Attorney General and Another Admn 9-Jul-2013
The claimant had requested disclosure of correspondence between Prince Charles and assorted government departments. It had been refused, the Attorney General issuing a certificate under section 53(2) after the Upper tribunal had allowed the . .
See AlsoEvans v Information Commissioner UTAA 18-Sep-2012
The claimant journalist had requested copies of correspondence between Prince Charles and assorted public bodies.
Held: ‘The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, . .

Cited by:
Appeal fromEvans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .

Lists of cited by and citing cases may be incomplete.

Information, Litigation Practice, European, Constitutional, Human Rights, Environment

Updated: 01 December 2021; Ref: scu.522384

AB v CD: CA 6 Mar 2014

The court was asked a point of principle about the proper approach to the grant of an interim injunction. It is trite law that such an injunction will not be granted if damages would be an adequate remedy for the wrong, if proved: indeed the same rule applies to final injunctions. But how does that apply in cases of an alleged breach of contract where the contract contains a provision limiting the recoverable damages to below what might otherwise have been awarded as a matter of general law ?

Laws, Ryder, Underhill LJJ
[2014] EWCA Civ 229
Bailii
England and Wales
Citing:
Appeal fromAB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 December 2021; Ref: scu.522108

In re Q: FD 6 May 2020

Appeal from a case management decision made in the course of long-running private law proceedings concerning the welfare of a girl, Q, who is now aged 6 .5 years.

Sir Andrew McFarlane P
[2020] EWHC 1109 (Fam)
Bailii
England and Wales

Children, Litigation Practice

Updated: 01 December 2021; Ref: scu.655250

Calor Gas Ltd v Stanford: ChD 13 Nov 2009

Judgment on the return date following a search order which had been successfully obtained without notice from Wyn Williams J. The claimant said that the defendant had been refilling the claimant’s Liquid Petroleum Gas cylinders with gas from other suppliers, and that this put the public at risk. Holroyd J quoted Wyn Williams J as saying: ‘Not without some hesitation, as has been obvious by virtue of the interchange between leading counsel and myself, I propose to make a suitable Search and Seizure Order in a moment. The principal reasons which have led me to that course are threefold. First of all, the cause of action appears unassailable, certainly on the information placed before me, but in all probability, the cause of action is unassailable. Secondly, the Respondent has previously given an undertaking to the court, admittedly 12 years ago, but the evidence put before me suggests that the Defendant is continuing a course of conduct which is in breach of that undertaking . . Thirdly, there is a public interest in the granting of this injunction since there is a risk that the misuse of the Claimant’s cylinders in the way described in the evidence could lead to real public safety concerns. On those grounds this draconian Order is justified.’

Holroyd J
Unreported, 13 November 2009
England and Wales
Cited by:
CitedCalor Gas Ltd v Chorley Bottle Gas Ltd and Another QBD 22-Jul-2020
Search and Seizure – Concerns for Public Safety
The claimant supplied branded liquid gas containers and the gas, on condition that only its liquid gas would be used within the containers. The sought a search and seizure order against the defendants, saying that the public health and safety risks . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 November 2021; Ref: scu.654039

Flint v Lovell: CA 1934

The Court considered the conditions for it to interfere with an assessment of damages at first instance.
Greer LJ said: ‘I think it right to say that this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.’

Greer LJ
[1935] 1 KB 354, 51 TLR 127, (1934) 152 LT 231, [1934] All ER 200, (1934) 104 LJKB 199
England and Wales
Cited by:
ApprovedRose v Ford HL 1937
Damages might be recovered for a loss of expectation of life. A claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law.
Lord Wright . .

Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Updated: 30 November 2021; Ref: scu.654040

Bayerische Motoren Werke Ag (Bmw) v Premier Alloy Wheels (Uk) Ltd and Others: ChD 8 Jun 2018

Application for a search order, interim injunction and related relief. The claimant alleged the manufacture of fake BMW wheels by the defendant.
Mr Justice Henry Carr gave his reasons for granting a search order, interim injunction and related relief. He summarised the criteria: ‘A search and seizure order is an exceptional form of relief. The conditions that need to be satisfied are as follows. First, there must be a strong prima facie case of a civil cause of action. Suspicion is not enough; nor is it enough that there is a serious question to be tried. Second, the danger to the applicant to be avoided by the grant of the order must be serious, and if the order is to forestall the destruction of evidence, the evidence must be of major importance. Third, there must be clear evidence that the respondent has incriminating documents or articles in its possession. Fourth, there must be a real possibility of the destruction or removal of evidence. Fifth, the harm likely to be caused by the execution of the order on the respondent and his business affairs must not be out of proportion to the legitimate object of the order.’

Henry Carr J
[2018] EWHC 1713 (Ch)
Bailii
England and Wales
Cited by:
CitedCalor Gas Ltd v Chorley Bottle Gas Ltd and Another QBD 22-Jul-2020
Search and Seizure – Concerns for Public Safety
The claimant supplied branded liquid gas containers and the gas, on condition that only its liquid gas would be used within the containers. The sought a search and seizure order against the defendants, saying that the public health and safety risks . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 30 November 2021; Ref: scu.619885

Hardy, Regina (On the Application of) v Milford Haven Port Authority and Others: CA 30 Nov 2007

Renewed application for permission to appeal against a refusal to give permission for judicial review of the respondent Port Authority’s refusal to disclose documents relevant to the safety of proposals for the construction and operation of two liquefied natural gas terminals at Milford Haven.

Lord Justice Toulson
[2007] EWCA Civ 1403
Bailii
England and Wales

Construction, Litigation Practice

Updated: 30 November 2021; Ref: scu.346262

Eclipse Film Partners No 35 Llp v Revenue and Customs: CA 26 Feb 2014

The court was asked whether the First-Tier Tribunal (Tax Chamber) had jurisdiction to make an order that the costs of preparing hearing bundles for a substantive appeal by the appellant taxpayer should be shared equally between the taxpayer and the Commissioners for Her Majesty’s Revenue and Customs. Held; The taxpayer’s appeal failed.

Moses, Black, Kitchin LJJ
[2014] EWCA Civ 184
Bailii
England and Wales
Citing:
See AlsoEclipse Film Partners No 35 Llp v Revenue and Customs SCIT 17-Feb-2009
SCIT Closure notice – application for direction to close enquiry into tax return – limited liability partnership – s 28B Taxes Management Act 1970 – direction for closure within three months . .
See AlsoEclipse Film Partners No. 35 Llp v Revenue and Customs FTTTx 22-Sep-2010
FTTTx INCOME TAX – Applications by the parties for further directions – whether departure by HMRC unilaterally from the timetable for preparation for the appeal set down in agreed directions, causing additional . .
At FTTTxEclipse Film Partners No 35 Llp v Revenue and Customs FTTTx 22-Jun-2011
FTTTx Expert evidence – application for a direction to exclude expert evidence – whether expert evidence inadmissible on grounds that it is an opinion as to UK tax and therefore trespasses on the special . .
See AlsoEclipse Film Partners No 35 Llp v Revenue and Customs FTTTx 20-Apr-2012
FTTTx Income tax – limited liability partnership acquired licence to film rights and sub-licensed rights to distributor – complex financing arrangements involving loans to members of the partnership and . .
See AlsoHM Revenue and Customs v Eclipse Film Partners No35 Llp UTTC 22-Mar-2013
UTTC Procedure – costs – whether, in a case where the taxpayer has opted out of the Complex costs regime, the First-tier Tribunal has the power to order that the parties share the costs of the appellant complying . .

Cited by:
See AlsoEclipse Film Partners No 35 Llp v HM Revenue and Customs CA 17-Feb-2015
Appeal against closure notice. . .
At CAEclipse Film Partners No 35 Llp v Revenue and Customs SC 11-May-2016
The issue raised on this appeal concerns the extent to which the jurisdiction of the First-tier Tribunal to make an order for costs is fettered by the provisions of the Rules regulating the procedure of the Tribunal.
Held: With one exception, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 30 November 2021; Ref: scu.521622

Summit Navigation Ltd and Another v Generali Romania Asigurare Reasigurare Sa Ardaf Sa and Another: ComC 21 Feb 2014

The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it is usually appropriate to start by considering the nature of the non-compliance. If the non-compliance can be regarded as trivial or insignificant, the court will usually grant relief provided that an application is made promptly.
ii) If the non-compliance cannot be so regarded, the court should consider why it occurred and will still be likely to grant relief if there is a good reason for it.
iii) Good reasons are likely to arise from circumstances outside the control of the party in default; by contrast, inefficiency or incompetence of a party’s solicitors – for example, where a deadline is simply overlooked – is unlikely to amount to a good reason.
iv) Where the non-compliance is not trivial and there is no good reason for it, the court is still required by CPR 3.9 to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’
However, relief should not usually be granted in such cases because the circumstances which should generally be given greatest weight are the two factors specifically mentioned in the rules.’
. . And ‘There remains, of course, the further consideration of the need to enforce compliance with rules, practice directions and court orders which, even on its own, must clearly be given substantial weight. But, as the Master of the Rolls emphasised in his lecture on the Jackson reforms in words approved by the Court of Appeal in Mitchell at [38], it is not the aim of the reforms to turn rules and rule compliance into ‘trip wires’, nor into ‘the mistress rather than the handmaid of justice’, nor to render compliance ‘an end in itself’. It seems to me that this would be precisely the result of refusing relief in a situation where, as here, there has been non-compliance with a rule or order but the objective which the insistence on compliance seeks to serve of ensuring that litigation is conducted efficiently and at proportionate cost has not been impaired.’

Leggatt J
[2014] EWHC 398 (Comm), [2014] WLR(D) 104
Bailii, WLRD
Civil Procedure Rules 3.9
England and Wales
Citing:
CitedMitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .

Cited by:
CitedRattan v UBS Ag, London Branch ComC 12-Mar-2014
rattan_ubsComC0314
The claimant had sought an order limiting the defendant’s costs after alleged non-compliance with directions, and failing to file a costs budget.
Held: The application was rejected. The Commercial Court will firmly discourage the taking of . .
CitedKaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
AppliedAmerichem Europe Ltd v Rakem Ltd TCC 13-Jun-2014
americhem_rakemTCC0614
Complaint was made that a costs estimate had been signed not by a solicitor, but by a costs draftsman.
Held: The rules required the estimate to have been signed by a ‘senior legal representative’. A costs draftsman whose involvement in the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 November 2021; Ref: scu.521586

Associated Electrical Industries Ltd v Alstom UK: ComC 24 Feb 2014

The claimant was late in serving its particulars of claim. The defendant now requested the strike out of the claim for that default.
Held: The court applied the principles set out in Mitchell to refuse consent.

Andrew Smith J
[2014] EWHC 430 (Comm)
Bailii
Citing:
CitedMitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .

Cited by:
CitedKaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 November 2021; Ref: scu.521584

Abouraya v Sigmund and Others: ChD 13 Feb 2014

Application for permission to continue this action against the first defendant as a derivative claim on behalf of and for the benefit of the second and third defendants. Permission is also sought pursuant to CPR 6.36 to serve the claim form out of the jurisdiction on the second defendant at its registered office in Hong Kong.

David Richards J
[2014] EWHC 277 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 29 November 2021; Ref: scu.521241

The Bank of Ireland and Another v Philip Pank Partnership: TCC 12 Feb 2014

It is an irregularity for a costs budget to fail to set out the Statement of truth in full.

Stuart-Smith J
[2014] EWHC 284 (TCC)
Bailii
Cited by:
CitedAmerichem Europe Ltd v Rakem Ltd TCC 13-Jun-2014
americhem_rakemTCC0614
Complaint was made that a costs estimate had been signed not by a solicitor, but by a costs draftsman.
Held: The rules required the estimate to have been signed by a ‘senior legal representative’. A costs draftsman whose involvement in the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 29 November 2021; Ref: scu.521246

European Platform Against Windfarms v European Commission: ECFI 21 Jan 2014

ECFI Action for annulment – Legal person governed by private law – Absence of proof of existence in law – Article 44(5)(a) of the Rules of Procedure of the General Court – Manifest inadmissibility

M.E. Martins Ribeiro, P
T – 168/13, [2014] EUECJ T – 168/13
Bailii

European, Litigation Practice

Updated: 29 November 2021; Ref: scu.521179

Clark and Another v Trip Advisor Llc: SCS 6 Feb 2014

(Outer House) The petitioners complained of reviews of their guest house business carried by the respondent web-site operators which were said to be defamatory. The petitioners sought an order from the court ordaining the respondents to disclose the names, addresses and other such information that they have as to the identity of those persons who posted the said reviews

[2014] ScotCS CSOH – 20, 2014 SLT 418, 2014 GWD 7-138
Bailii
Scotland

Defamation, Litigation Practice

Updated: 29 November 2021; Ref: scu.521143

Shahid v The Scottish Ministers: SCS 31 Jan 2014

The appellant was serving a long term of imprsonment, and now complained that he had been held in segregation for over 4 years, saying that this was ahgainst the Prison Rules and against his human rights.
Held: The Extra Division refused the appeal from a rejection of the claim.

Lord Drummond Young
[2014] ScotCS CSIH – 18A, [2014] CSIH 18A, 2014 GWD 6-131, 2014 SLT 335, 2014 SC 490
Bailii
European Convention on Human Rights 3 8, Prisons and Young Offenders Institutions (Scotland) Rules 1994
Scotland
Citing:
Appeal fromShahid v Scottish Ministers SCS 18-Nov-2011
(Outer House Court of Session) The petitioner complaine dthat whilst serving a very long term of imprisonment, he had been held in segregation for almost five years, and that this contravened the Prison Rules and his human rights.
Held: The . .

Cited by:
Appeal fromShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .

Lists of cited by and citing cases may be incomplete.

Prisons

Updated: 29 November 2021; Ref: scu.521142

Hegazy and Others v The Commissioner of Police of The Metropolis: QBD 10 Feb 2014

The claimants alleged false imprisonment, assault and race discrimination
Several claimants made assorted claims against the police, and sought to have admitted various events as similar fact evidence.

Sir David Eady
[2014] EWHC 235 (QB)
Bailii
England and Wales

Police, Torts – Other, Litigation Practice

Updated: 29 November 2021; Ref: scu.521122