Category: Litigation Practice

McDonald and Others v Horn and Others: CA 8 Aug 1994

A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority shareholder’s action for damages on behalf of the company and an action by a member of a pension fund to compel trustees or others to account to a fund. In both cases a person with a limited interest in a fund, whether a company’s assets or a pension fund, is alleging injury to the fund as a whole and seeking restitution on behalf of the fund. And what distinguishes the shareholder and pension fund member, on the one hand, from the ordinary trust beneficiary, on the other, is that the former have both given consideration for their interests. They are not just recipients of the settlor’s bounty which he, for better or worse, has entrusted to the control of trustees of his choice. The relationship between the parties is a commercial one and the pension fund members are entitled to be satisfied that the fund is being properly administered. Even in a non-contributory scheme, the employer’s payments are not bounty. They are part of the consideration for the services of the employee. Pension funds are such a special form of trust and the analogy between them and companies with shareholders is so much stronger than in the case of ordinary trusts that, in my judgment, that it would do no violence to established authority if we were to apply to them the Wallersteiner v. Moir (No. 2) procedure.’
As to the court’s powers to award costs: ‘The court’s jurisdiction to deal with litigation costs is based upon section 51 of the Supreme Court Act 1981, which, is derived from section 5 of the Supreme Court of Judicature Act 1890.
The background to the Act of 1890 is briefly as follows. In the old courts of common law, costs followed the event. The judge had no discretion. In the Court of Chancery, costs were in the discretion of the court but that discretion was exercised according to certain principles which I shall discuss later. The first Rules of the new Supreme Court of Judicature (enacted in 1875) adopted the Chancery practice.
The discretion conferred by section 51 is by no means untrammelled. It must be exercised in accordance with the rules of court and established principles.’ and ‘In the case of a fund held on trust, therefore, [‘therefore’ is explained by his immediately previous citation of sub rule 2 of order 62, rule 6 of the then Rules of the Supreme Court] the trustee is entitled to his costs out of the fund on an indemnity basis, provided only that he has not acted unreasonably or in substance for his own benefit rather than that of the fund. Trustees are also able to protect themselves against the possibility that they may be held to have acted unreasonably or in their own interest by applying at an early stage for directions as to whether to bring or defend the proceedings. This procedure, sanctioned by the decision of the Court of Appeal in Re Beddoe, Downes v Cottam requires the trustee to make full disclosure of the strengths and weaknesses of his case. Provided that such disclosure has been made, the trustee can have full assurance that he will not personally have to bear his own costs or pay those of anyone else.’

Judges:

Hoffmann LJ

Citations:

Ind Summary 08-Aug-1994, Times 10-Aug-1994, [1995] 1 All ER 961, (1994) 144 NLJ 1515, [1995] ICR 685, [1995] 1 CR 685

Statutes:

Supreme Court Act 1981 51, Supreme Court of Judicature Act 1890 5

Jurisdiction:

England and Wales

Citing:

Appeal from – McDonald and Others v Horn and Others ChD 12-Oct-1993
A pre-emptive costs order is possible where Plaintiffs are impecunious but the case is very strong. . .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – In re Mills’ Estate CA 1886
The Practice Rules conferred a discretion as to costs only in cases in which before the Judicature Acts the courts would have had jurisdiction to make awards of costs. The Act of 1890 was intended to confer such jurisdiction in any case whatever. . .
Cited – In Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 26 October 2022; Ref: scu.83521

Mercantile Group (Europe) Ag v Aiyela and Others: CA 4 Aug 1993

Interlocutory injunctions including Mareva procedures and orders are available to support the enforcement of a judgment. The purpose of such a jurisdiction is so that the court can ‘ensure the effective enforcement of its orders’. A court may still make an order for disclosure and an injunction after judgment has been entered.

Judges:

Sir Thomas Bingham MR

Citations:

Independent 12-Aug-1993, Times 04-Aug-1993, [1994] QB 366

Jurisdiction:

England and Wales

Citing:

Appeal from – The Mercantile Group (Europe) AG v Victor Aiyela and Others ComC 18-Apr-1994
cw Contempt – Contempt of court by individual – arising from breach of order for disclosure of documents and undertakings . .

Cited by:

Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.83642

Mercury Communications Ltd v Director General of Telecommunications and Another: CA 3 Aug 1994

Parties having contracted to resolve differences by an agreed procedure, could not go back on that agreement. The court will not replace an agreement for a resolution method chosen by parties with own advice and freely.

Citations:

Independent 19-Aug-1994, Times 03-Aug-1994, Gazette 07-Oct-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .

Cited by:

Appeal from – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 26 October 2022; Ref: scu.83653

Macmillan Inc v Bishopsgate Investment Trust Plc: CA 1 Sep 1993

A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
Judge’s discretion not to order production not to be interfered with.

Citations:

Times 17-May-1993, Gazette 01-Sep-1993

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Appeal from – Macmillan Inc v Bishopsgate Investment Trust Plc Chd 17-Mar-1993
Evidence given to a liquidator was not discoverable in civil proceedings. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.83281

Khorasandjian v Bush: CA 16 Feb 1993

The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many complaints against the defendant, including assaults, threats of violence, and pestering the plaintiff at her parents’ home where she lived. As a result of the defendant’s threats and abusive behaviour he spent some time in prison.
Held: Harassing telephone calls can be restrained on the basis that they can constitute a nuisance to the occupier. A court may restrain harassment not just to protect a strict legal right.
Dillon LJ (with whom Rose LJ agreed) described the authorities as establishing that ‘false words or verbal threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable’ and interpreted injury in the sense of ‘recognisable psychiatric illness with or without psychosomatic symptoms’, as distinct from ‘mere emotional distress’.
. . And ‘ . . false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause and actually causing physical injury to the person to whom they are uttered are actionable: see the judgment of Wright J in Wilkinson v Downton [1897] 2 QB 57 at 59, [1895-9] All ER Rep 267 at 269 cited by Bankes LJ in Janvier v Sweeney [1919] 2 KB 316 at 321-322, [1918-19] All ER Rep 1056 at 1059. There was a wilful false statement, or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical injury, viz illness of the nature of nervous shock.”

Judges:

Dillon, Rose LJJ, Peter Gibson J

Citations:

Gazette 21-Apr-1993, Independent 17-Mar-1993, [1993] Fam Law 679, [1993] 3 WLR 476, [1993] QB 727, [1993] 3 All ER 669, [1993] EWCA Civ 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Motherwell v Motherwell 1976
(Appellate Division of the Alberta Supreme Court) The court recognised that not only the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his . .
Cited – Patel v Patel CA 1988
An exclusion zone order had been removed from an injunction granted to a father-in-law against his son-in-law. May LJ observed that an injunction ‘can only be an appropriate remedy where an actual tortious act has been or is likely to be committed’. . .

Cited by:

Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Overruled – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Ward v Scotrail Railways Limited SCS 27-Nov-1998
The claimant sought damages from the defender, saying that a co-worker had sexually harrassed her. The behaviour continued after she made a complaint to her employer.
Held: It was conceded that the employee’s conduct was not such as to attract . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 26 October 2022; Ref: scu.82771

Marsh v Marsh: CA 1 Mar 1993

Appeals under the Family Proceedings Rules had to be read in conjunction with the CCR Order 37 r 6, and the judge hearing the appeal had discretion to substitute his own view for that of the court below. This is different from what applies on appeal to the Court of Appeal. In particular the judge may choose to hear fresh evidence: ‘No party shall be entitled as of right to adduce further evidence or oral evidence but the judge may in his discretion admit such further or oral evidence as he thinks relevant and just upon such terms as he thinks fit.’

Judges:

Sir Stephen Brown P

Citations:

Ind Summary 01-Mar-1993, Times 16-Feb-1993, [1993] 1 WLR 744

Statutes:

Family Proceedings Rules 1991 8.1(2) 8.1(3) 4.23, County Court Rules 1981 Order 37 Rule 6, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

Reconsidered – Cordle v Cordle CA 15-Nov-2001
The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 October 2022; Ref: scu.83425

Kuwait Airways Corporation v Iraqi Airways Corporation (No 2): CA 20 Jan 1994

A successful appeal on a costs award should be backdated to the original order.

Citations:

Gazette 23-Feb-1994, Times 20-Jan-1994, [1994] 1 WLR 985

Jurisdiction:

England and Wales

Cited by:

Disapproved – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 26 October 2022; Ref: scu.82868

In Re A Debtor (No 340 of 1992): CA 19 Jul 1993

Sheriff’s failure to gain access meant that he had failed to execute the writ of fieri facias. Failure to serve writ of fieri facias is not merely a formal defect or irregularity.

Citations:

Ind Summary 13-Sep-1993, Times 19-Jul-1993

Statutes:

Insolvency Act 1986 268(1)(b)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.81660

Harwood v Courtaulds Ltd: CA 24 Mar 1993

A defendant who acquiesces in delay, may forfeit any right to make a complaint of want of prosecution. Additional delay after the acquiescence had ceased could not revive the right unless the defendant could show some additional prejudice arising from that further delay.

Citations:

Gazette 24-Mar-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.81273

Duchess Theatre Co Ltd and Others v Lord and Others: CA 9 Dec 1993

The Henderson principle that a matter could not be relitigated was not to be extended to stop an action on a guarantee after other action. A party can request payment under a guarantee where the huarantee had survived a prior judgment.

Citations:

Times 09-Dec-1993, Ind Summary 27-Dec-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.80153

GE Capital Corporate Finance Group v Bankers Trust Co and Others: CA 3 Aug 1994

Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant’, and after citing Jones v Andrews, ‘In my view, the test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant’.

Judges:

Hoffmann LJ, Legatt LJ

Citations:

Gazette 12-Oct-1994, Independent 02-Sep-1994, Times 03-Aug-1994, [1995] 1 WLR 172

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Andrews 1888
Where a party to proceedings gives his list of documents supported by his oath, discovery is conclusive, Cotton LJ said that: ‘unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from . .

Cited by:

Cited – Paddick v Associated Newspapers Ltd QBD 10-Dec-2003
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material.
Held: The application failed. The claimant had stated that the balance of . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.80777

Fozal v Gofur: CA 9 Jul 1993

An order for wasted costs against counsel could only be allowed with respect to acts done after 1 October 1991, with the new rules.

Citations:

Times 09-Jul-1993, Ind Summary 26-Jul-1993, [1993] CA Transcript 680

Statutes:

Courts and Legal Services Act 1990$ 4

Jurisdiction:

England and Wales

Cited by:

Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Legal Professions

Updated: 26 October 2022; Ref: scu.80655

Continental Bank Na v Aeakos Compania Naviera Sa and Others: CA 26 Nov 1993

The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would be a relatively ineffective remedy. An injunction is the only effective remedy for the appellants’ breach of contract. If the injunction is set aside, the appellants will persist in their breach of contract, and the bank’s legal rights as enshrined in the jurisdiction agreements will prove to be valueless. Given the total absence of special countervailing factors, this is the paradigm case for the grant of an injunction . .’

Judges:

Steyn LJ

Citations:

Ind Summary 13-Dec-1993, Times 26-Nov-1993, [1994] 1 WLR 588

Statutes:

Brussels Convention 1968 Art 17

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Jurisdiction

Updated: 26 October 2022; Ref: scu.79470

Brown v Guardian Royal Exchange Assurance Plc: CA 27 Jan 1994

Policy terms negate professional privilege between solicitor and insurance company’s solicitor. No privilege against disclosure between firm, solicitors and own insurers.

Citations:

Independent 11-Feb-1994, Times 27-Jan-1994, Gazette 02-Mar-1994

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 26 October 2022; Ref: scu.78701

Chiron Corporation and Others v Murex Diagnostics Ltd: CA 14 Oct 1994

ECJ judgments make a UK court functus officio only after their full judgment has been delivered. Where judgment had already been given, it was no longer possible for the defendant in an action to seek a reference to the European Court on refusal of an application for leave to appeal to the House of Lords. The decision of the House as to leave was a judicial one and not merely administrative.

Citations:

Ind Summary 24-Oct-1994, Times 14-Oct-1994

Jurisdiction:

England and Wales

Citing:

See Also – Chiron Corporation v Organon Teknika Ltd; Same v Murex Diagnostics (No 7) ChD 17-Feb-1994
The issue of loss in a prior patent challenge is res judicata in later proceedings despite the presence of experimental difficulties leading to ipossibly severe time limits. A patent applicant has no duty to inform the Patent Office of matters . .
See Also – Chiron Corporation and Others v Murex Diagnostics Ltd (No 11) ChD 15-Mar-1996
A large interim award of damages can be proper if it is less than the likely damages which would be awarded at trial despite their remaining outstanding issues of fact to be decided. . .
See Also – Chiron Corporation v Organon Teknika (No 2) CA 1993
Section 44 could be used in a patent contract dispute even though the patent at issue was governed by the law of a foreign state which would not itself have applied that section. . .

Cited by:

See Also – Chiron Corporation v Organon Teknika Ltd; Same v Murex Diagnostics (No 7) ChD 17-Feb-1994
The issue of loss in a prior patent challenge is res judicata in later proceedings despite the presence of experimental difficulties leading to ipossibly severe time limits. A patent applicant has no duty to inform the Patent Office of matters . .
See Also – Chiron Corporation and Others v Murex Diagnostics Ltd (No 11) ChD 15-Mar-1996
A large interim award of damages can be proper if it is less than the likely damages which would be awarded at trial despite their remaining outstanding issues of fact to be decided. . .
Lists of cited by and citing cases may be incomplete.

European, Litigation Practice

Updated: 26 October 2022; Ref: scu.79095

Caribbean General Insurance Co Ltd v Frizzell Insurance Brokers: CA 4 Nov 1993

The judge was wrong to re-instate a case after there had been repeated breaches of unless orders by the plaintiff. Peremptory orders of the court must be obeyed unless excusable.

Citations:

Gazette 19-Jan-1994, Times 04-Nov-1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Caribbean Gold Ltd v Alga Shipping Ltd (The Nova Scotia) QBD 2-Jun-1993
The time for service of a writ was extended after an excusable error by solicitors. The writ had been issued but the guidance given had been confusing. . .

Cited by:

Appealed to – Caribbean Gold Ltd v Alga Shipping Ltd (The Nova Scotia) QBD 2-Jun-1993
The time for service of a writ was extended after an excusable error by solicitors. The writ had been issued but the guidance given had been confusing. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 26 October 2022; Ref: scu.78901

Chiron v Murex: CA 24 May 1993

The Court of Appeal will not usually overturn a judge’s striking out of a patent action defence.

Citations:

Ind Summary 24-May-1993

Jurisdiction:

England and Wales

Citing:

See Also – Chiron v Murex CA 18-Oct-1993
It was for a judge to identify the real issues, and he may strike out parts of the defence and refuse amendments. . .

Cited by:

See Also – Chiron v Murex CA 18-Oct-1993
It was for a judge to identify the real issues, and he may strike out parts of the defence and refuse amendments. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.79101

Aectra Refining and Marketing Inc v Exmar NN: CA 15 Aug 1994

A time loss claim can found a legal set-off claim against ship owners, provided that the loss claim can be made in the same court. The court referred to a ‘transaction set-off and independent set-off’. Cross-claims must both be due and payable, and either liquidated or capable of being quantified by reference to ascertainable facts that do not, in their nature, require estimation or valuation.
Hoffman LJ reaffirmed the procedural character of legal set-off, saying: ‘Independent set-off, as its name suggests, does not require any relationship between the transactions out of which the cross claims arise. In English law it is based on section 13 of the Insolvent Debtors Relief Act 1729 . . The procedural basis of independent set-off is reflected in the rule that the mere existence of liquidated cross-claims does not automatically extinguish the smaller debt . . It operates only by express or implied agreement or through the judicial process by which the account is taken. As Sir George Jessel MR said in Talbot v Frere (1878) 9 ChD, 568, 573 ‘there could not be a set-off until action brought and set-off pleaded.’ The Act of 1729 is expressed in procedural terms’

Judges:

Hoffman LJ, Hirst LJ

Citations:

Ind Summary 22-Aug-1994, Times 15-Aug-1994, [1995] 1 All ER 641, [1994] 1 WLR 1634

Jurisdiction:

England and Wales

Citing:

Cited – Talbot v Frere CA 1878
Sir George Jessel MR said: ‘there could not be a set-off until action brought and set-off pleaded.’ . .

Cited by:

Cited – Benford Ltd and Another v Lopecan Sl QBD 30-Jul-2004
The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the . .
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Transport

Updated: 26 October 2022; Ref: scu.77660

Arbuthnott v Fagan: CA 11 Jul 1994

Evidence given to Lloyds loss review committee is discoverable despite rule.

Citations:

Ind Summary 11-Jul-1994

Jurisdiction:

England and Wales

Citing:

See also – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .

Cited by:

Appeal from – Arbuthnot and Others v Fagan and Feltring Underwriting Agencies Ltd and Others HL 26-Jul-1994
A relationship in contract does not negative a duty of care between the parties. A plaintiff with a choice of action either in contract or in negligence can choose his remedy, and the limitation period with which it is associated. . .
See also – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.77856

Bolton Metropolitan Borough Council and Others v Secretary of State for Environment and Others: CA 4 Aug 1994

A decision maker can take a preliminary view of a matter provided that he continues to keep an open mind.

Citations:

Gazette 06-Jan-1993

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others HL 25-May-1995
There had been an application in 1986 for planning permission for a shopping centre in Trafford. There were two public enquiries, followed, as public policy changed by further representations. The plaintiff complained that the eventual decision . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.78472

Balfour v Foreign and Commonwealth Office: CA 10 Dec 1993

A judge may choose not to inspect the documents behind a Public Interest immunity certificate if that certificate had been given for reasons of National Security. The court must always be vigilant to ensure that public interest immunity of whatever kind is raised only in appropriate circumstances and with appropriate particularity.

Judges:

Russell LJ

Citations:

Independent 10-Dec-1993, Times 10-Dec-1993, [1994] 1 WLR 681, [1994] 2 All ER 588, [1994] ICR 277

Jurisdiction:

England and Wales

Cited by:

Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 26 October 2022; Ref: scu.78110

Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd: CA 9 May 2006

The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the 1974 Act which would give rise to a right to damages. The regulations had been made in exercise of his powers under the 1972 Act and ‘of all his other enabling powers’.
Held: The question could be put: ‘Do general enabling words cover, as the appellants say, all the powers that might have been invoked to make the SI or are they apt to denote only the powers that must necessarily be utilised if the SI is to take effect according to the terms in which it is enacted? ‘ General enabling words will not be taken as an exercise of all powers which might have been used to create the regulations. They do refer to an enabling power not expressly invoked where that power was a necessary prerequisite of the regulations, where the instrument itself is clear that the power must have been used and where it is necessary to ensure compliance with European law. On this basis the regulations had not been made under the 1974 Act, and in any event such regulations could not base a claim for consequential damages.

Judges:

Lady Justice Arden DBE Lord Justice Brooke Sir Anthony Clarke MR

Citations:

Times 30-May-2006, [2006] EWCA Civ 536, [2006] 1 WLR 2472

Links:

Bailii

Statutes:

Supply of Machinery (Safety) Regulations 1992 (SI 1992 No. 3073), Health and Safety at Work etc Act 1974 15(1), European Communities Act 1972 82(2), Interpretation Act 1978 11

Jurisdiction:

England and Wales

Citing:

Cited – Buck v Attorney General ChD 1965
The claimant challenged the validity of an order in council. The order used general enabling words, not expressly stating which power had been used for their creation.
Held: The result of those general enabling words was that the order was . .
Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Revenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Commission v Germany (Rec 1991,P I-825) (Judgment) ECJ 28-Feb-1991
Europa Measures adopted by the Community institutions – Directives – Implementation by the Member States – Implementation of a directive without legislative action – Conditions – Existence of a general legal . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Damages, Litigation Practice, European

Updated: 25 October 2022; Ref: scu.241574

Henderson v 3052775 Nova Scotia Ltd: HL 10 May 2006

The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. The court had then issued an interlocutor in effect debarring the defence as ineffective. The company now appealed against that interlocutor.
Held: ‘the rule [2.2] envisages that the court may look beyond the pleadings and consider what, in substance, each of the parties and, more particularly, the defender is saying. It is this power which allows the court to deal with a party who tries to use his written pleadings not to present a real defence but to throw up a smokescreen of supposed fact behind which he can delay the progress of an action, or part of an action, which he is bound to lose. ‘ and ‘considering a motion for summary decree is entitled to proceed not merely on what is said in the defences, but on the basis of any facts which can be clarified, from documents, articles and affidavits, without trespassing on the role of the proof judge in resolving factual disputes after hearing the evidence. The judge can grant summary decree if he is satisfied, first, that there is no issue raised by the defender which can be properly resolved only at proof and, secondly, that, on the facts which have been clarified in this way, the defender has no defence to all, or any part, of the action. ‘ Nevertheless, on th epapers before the court it was quite impossible to say that the defence must fail.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Mance

Citations:

[2006] UKHL 21, 2006 SCLR 626

Links:

Bailii

Statutes:

Insolvency Act 1986 21.2, Rules of the Court of Session 21.2

Jurisdiction:

England and Wales

Citing:

Appeal from – Henderson v 3052775 Nova Scotia Limited IHCS 18-Feb-2005
. .
See Also – Henderson CA (the Liquidator of Letham Grange Development Co Ltd) v 3052772 Nova Scotia Limited OHCS 9-Dec-2003
. .
See Also – Mathew Purdon Henderson ( Liquidator of Letham Grange Development Co Ltd) v 3052775 Nova Scotia Ltd OHCS 21-Apr-2004
. .
Cited – Jamieson v Jamieson HL 1952
The house discussed the test for relevancy of a pursuer’s averments.
Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
The House reversed the decision of the Court of . .
Cited – Frew v Field Packaging Scotland Ltd 1994
Rule 21.2(4) gives the court a power to grant the motion, but does not require it to do so where it would not be appropriate in all the circumstances . .
Cited – P and M Sinclair v The Bamber Gray Partnership 1987
A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate. . .
Cited – Keppie v The Marshall Food Group Ltd 1997
In a motion for summary decree, ‘The court is not concerned with forecasting the outcome of a proof.’ . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Litigation Practice

Updated: 25 October 2022; Ref: scu.241620

Celador Productions Ltd v Melville: ChD 21 Oct 2004

The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no copyright or confidentiality existed, but only that there was no evidence that they had infringed any such right.
Held: As to the first two claims, the appeal succeeded, but the third had a real prospect of success and should be allowed to go to trial. When considering an application for summary judgment the following principles should be applied: (a) the applicant must show that the respondent’s case has no real prospect of success at trial; (b) a ‘real’ prospect of success is one which is more than fanciful and merely arguable; (c) if it is clear beyond question that the respondent will not be able at trial to establish the facts on which he relies then his prospects of success are not real; (d) the court is not entitled, on an application for summary judgment, to conduct a trial on the documents without disclosure or cross-examination.

Judges:

Sir Andrew Morritt V-C

Citations:

[2004] EWHC 2362 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .

Cited by:

Cited – Allen v Bloomsbury Publishing Plc and Another ChD 14-Oct-2010
The claimant sought damages alleging breach of copyright by the defendant author saying she had copied large parts of the claimant’s work in her book ‘Harry Potter and the Goblet of Fire’. The defendant now sought summary judgment, saying the action . .
Cited – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 25 October 2022; Ref: scu.216640

Locabail International Finance Ltd v Agroexport: CA 1986

There is a general principle of the law as to injunctions that the court should not put itself in the position of making orders which it cannot enforce against the person or assets of a defendant.

Judges:

Mustill LJ

Citations:

[1986] 1 WLR 657

Jurisdiction:

England and Wales

Cited by:

Cited – Motorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 25 October 2022; Ref: scu.183514

Equitable Life Assurance Society v Ernst and Young: CA 25 Jul 2003

The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when their losses could be minimalised. They appealed a judgment limiting the claim to 500 million pounds.
Held: The case should not be limited to a claim of any certain size. The issues were an an area of developing jurisprudence, and were fact dependent. In such cases a strike out was inappropriate, and the Court should not be drawn into a mini-trial of complex cases at this stage.
Brooke LJ said: ‘The overriding concern is the interests of justice. So far as facts are concerned, the simpler the case is the easier it is likely for a court to be able to take a view that the basis of a claim is fanciful or contradicted by all the documentary material on which it is founded. More complex cases are unlikely to be capable of being resolved in that way. There is a danger of injustice in seeking to try such cases summarily on the documents and thus without disclosure and oral evidence tested by cross-examination. It should not be done unless the court can be confident that all the relevant facts had already been satisfactorily investigated.’

Judges:

Lord Justice Brooke Lord Justice Rix And Lord Justice Dyson

Citations:

[2003] EWCA Civ 1114, Gazette 02-Oct-2003, [2003] 2 BCLC 603, [2007] Lloyds Rep PN 22, [2004] PNLR 16

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Wenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Farah and Others v Home Office, British Airways Plc and Another CA 6-Dec-1999
The applicants claimed in negligence against the Home Office after its advisers had wrongly advised the first defendants that the claimants’ travel documents were not valid. The claim was struck out, and the claimants appealed. The strike out was . .
Cited – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – First Interstate Bank of California v Cohen Arnold and Co CA 11-Dec-1995
If a guarantor’s negligent accountant had not misled the bank by misrepresenting his client’s wealth, the bank would have demanded repayment of its secured loan on 30th June 1990. In the event it did not realise the true position until 17th August. . .
Cited – Skipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
Cited – E (A Minor) v Dorset County Council CA 1995
It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Coulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
Cited – Sasea Finance Ltd v KPMG (Formerly KPMG Peat Marwick Mclintock) ChD 10-May-2001
It was complained that the auditors had failed timeously to warn the company of fraud by a senior employee. The appeal concerned an application to strike out heads of claim in an action brought by the company against its auditors for negligence.

Cited by:

Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Cited – Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 25 October 2022; Ref: scu.184820

Great Peace Shipping Ltd v Tsavliris (International) Ltd: CA 14 Oct 2002

The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: Over the years there had been a conflict caused by Lord Denning’s creation of an equitable doctrine of common mistake. That could no longer be allowed to continue, and no such doctrine could apply, and rescission was not available. There was no clear way of distinguishing mistakes which were fundamental to the contract. The fact that a bargain produced a worse position for one party was insufficient to found a rescission unless the mistake is such that it makes the contract adventure impossible. Two of the elements which must be present if common mistake is to avoid a contract are the non-existence of the state of affairs must render contractual performance impossible; and the state of affairs must be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.
Lord Phillips MR set out five condition which must be present if a contract was to be avoided as a mistake: ‘(i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.’

Judges:

Lord Phillips MR, May, Laws LLJ

Citations:

Times 17-Oct-2002, Gazette 07-Nov-2002, [2002] EWCA Civ 1407, [2003] QB 679, [2002] 2 Lloyd’s Rep 653, [2002] 4 All ER 689, [2002] 3 WLR 1617

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Overruled – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Confirmed – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Appeal from – Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd QBD 9-Nov-2001
The court examined the subject of mistake as a vitiating factor in the law of contract. . .

Cited by:

Cited – EIC Services Ltd European Internet Capital Ltd v Phipps, Paul, Barber CA 30-Jul-2004
Whether issue of additional shares had been properly authorised . .
Cited – Islington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
Cited – Butters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
Cited – Heath v Kelly and Another ChD 24-Jul-2009
The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Litigation Practice

Updated: 25 October 2022; Ref: scu.177726

Brown and Another v Bennett and Others (No 2): ChD 16 Nov 2001

The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at different stages. The defendants asserted that they should have appreciated that there was no prospect of success in an allegation of fraud. A decision to plead fraud, within the terms of the barristers’ code of conduct, was a matter of professional judgement. An order should be made only if the view reached by counsel that he could plead dishonesty was unreasonable or reckless. In this case also the claimants insisted on retaining their legal privilege, and accordingly the barristers were unable properly to defend their decisions.

Judges:

Justice Neuberger

Citations:

Times 21-Nov-2001, Gazette 10-Jan-2002

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Cited by:

Distinguished – Byrne v Sefton Health Authority CA 22-Nov-2001
There was no power to make an order for wasted costs against a solicitor who had not been acting in a matter when proceedings were issued. Delays eventually led to the dismissal of a medical negligence case for limitation. The defendant authority . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Litigation Practice

Updated: 25 October 2022; Ref: scu.166845

Suthendran v Immigration Appeal Tribunal: HL 1977

The Appellant had been given leave under section 3(1)(b) of the 1971 Act to enter and remain in the United Kingdom for 12 months. Before it expired, he applied for his leave to be varied by way of extension under section 3(3)(a) of the Act. The respondent refused the application; in consequence, the Appellant appealed against the decision relying upon section 14(1) of the 1971 Act: ‘Subject to the provision of this part of the Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against variation of the leave (whether as regards duration or conditions), or against any refusal to vary it;’ The Courts were troubled as to whether or not the Appellant had a right of appeal to the adjudicator under section 14.
Held: (Majority) Section 14(1) was not to be read as giving a right of appeal to a person whose limited leave to remain in the United Kingdom had expired at the time of applying for a variation, given the phrase ‘a person who has a limited leave’. The majority were not prepared to read that phraseology as including persons who had previously had leave to remain.
Lord Russell of Killowen said: ‘In my opinion this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extension he will no doubt treat the application as an application for the grant of leave to remain: but I observe that there is no right of appeal from a refusal to grant such a leave to remain . .’

Judges:

Lord Russell of Killowen

Citations:

[1977] AC 359, [1977] Imm AR 44, [1976] 3 All ER 611, [1976] UKHL 8

Links:

Bailii

Statutes:

Immigration Act 1971 3(1)(b)

Jurisdiction:

England and Wales

Cited by:

Disapproved – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited – Halil and Another v Davidson HL 3-Jul-1980
The appellants, Turkish Cypriots, arrived on visitor permits, but after extensions, were given notice that their leave to stay would come to an end.
Held: The appeal failed. The notice given was in the form disapproved in Suthendram, but the . .
Cited – Mirza and Others, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Dec-2016
In each case the applicant had sought to extend their leave to remain within the necessary time scale, but their applications had been defective. In one case the required biometric information had not been supplied, and in the other two the fees had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Immigration

Updated: 25 October 2022; Ref: scu.182918

Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others (No 4): ChD 13 Jun 2000

An application to the European Court of Human Rights was not an appeal. Where it was clear that any decision there would not affect the issues between the parties, there was no reason to suspend enforcement of the order which had given rise to the reference. A party complained at the lack of independence of the judge who had her trial, where he defended a possession summons. The possession order should go ahead.

Citations:

Times 13-Jun-2000, Gazette 22-Jun-2000

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others ChD 31-Mar-1999
A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second . .

Cited by:

Cited – Westminster City Council v Porter and Another ChD 30-Jul-2002
The claimant authority sought compensation from the respondents for acts committed whilst she had been a councillor. The auditor had certified that the respondents had caused losses amounting to 31 million pounds.
Held: Summary judgement was . .
See Also – Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Others ChD 31-Mar-1999
A consent to a mortgage on a property, allowed a bank to substitute a second charge for the first, without the owners consent, but this was limited to the extent and value of the first charge. There was no argument to limit the effect of the second . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice

Updated: 25 October 2022; Ref: scu.83128

Izba Gospodarcza Producentow I Operatorow Urza Dzen Rozrywkowych v Commission: ECJ 30 Apr 2020

Appeal – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Article 4(2), third indent – Exceptions to the right of access – Exception relating to protection of the purpose of investigations – Documents concerning pending infringement proceedings – Detailed opinions issued in the course of a notification procedure under Directive 98/34/EC – Request for access – Refusal – Disclosure of documents requested in the course of the proceedings before the General Court of the European Union – Disclosure – Inadmissibility – Interest in bringing proceedings – Continuation

Citations:

C-560/18, [2020] EUECJ C-560/18P, ECLI:EU:C:2020:330, [2019] EUECJ C-560/18P_O

Links:

Bailii, Bailii

Jurisdiction:

European

European, Litigation Practice

Updated: 25 October 2022; Ref: scu.660132

Re Al M (Publication): FD 27 Jan 2020

Judges:

The Rt Hon Sir Andrew McFarlane, President of the Family Division

Citations:

[2020] EWHC 122 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re Al M (Factfinding) FD 11-Dec-2019
. .
See Also – RE Al M (Assurances and Waiver) FD 17-Jan-2020
. .

Cited by:

Appeal from – Re Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 25 October 2022; Ref: scu.648613

RE Al M (Assurances and Waiver): FD 17 Jan 2020

Judges:

The Rt Hon Sir Andrew McFarlane, President of the Family Division

Citations:

[2020] EWHC 67 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re Al M (Factfinding) FD 11-Dec-2019
. .

Cited by:

See Also – Re Al M (Publication) FD 27-Jan-2020
. .
See also – Re Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 25 October 2022; Ref: scu.648612

The Competition and Markets Authority v Concordia International Rx (UK) Ltd: ChD 16 Nov 2017

The Authority had obtained and executed a search warrant against the defendant’s premises, but now sought to restrain disclosure of the materials upon which it had obtained that warrant, asserting Public Interest Immunity.
Held: An application to vary or revoke the warrant must be at an inter partes rehearing. At that rehearing eh court must rely only upon evidence disclosed to the other side, save that the authority would have liberty to submit an affidavit setting out the gist of any material redacted on public interest immunity grounds before determination of the application.
Marcus Smith J: ‘(i) rejected a submission that, if the CMA was to be permitted to resist the challenge, it must disclose the full material;
(ii) considered that the Supreme Court’s judgment in Al Rawi precluded a ‘closed material procedure’, whereby the material withheld could be seen by the court, but not by Concordia;
(iii) rejected the CMA’s case that some form of confidentiality ring could be established, to allow disclosure to Concordia’s counsel, without disclosure to Concordia; and
(iv) in these circumstances held that ‘Concordia’s application to vary or partially revoke the warrant must be determined on the basis of such material as is not protected by public interest immunity’

Judges:

Marcus Smith J

Citations:

[2017] EWHC 2911 (Ch), [2018] Bus LR 367, [2017] WLR(D) 772

Links:

Bailii, WLRD

Statutes:

Competition Act 1998 281(1), Enterprise and Regulatory Reform Act 2013, Competition Act 1998 and Other Enactments (Amendment) Regulations 2004

Jurisdiction:

England and Wales

Cited by:

Appeal from – The Competition and Markets Authority (CMA) v Concordia International Rx (UK) Ltd CA 7-Aug-2018
The Authority had obtained a search warrant on an ex parte application. The defendant sought a rehearing, but the Authority sought to rely upon material for which it now asserted public interest immunity in material already used. At first instance, . .
See Also – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 8-Nov-2018
Whether to appoint special advocate. The Authority wished to pursue an investigation relying upon material for which it asserted Public Interest Immunity. . .
See Also – The Competition and Markets Authority (CMA) v Concordia International Rx (UK) Ltd ChD 12-Dec-2018
Challenge to search warrants issued under the 1998 Act. . .
See Also – The Competition and Markets Authority v Concordia International Rx (UK) Ltd ChD 16-Jan-2019
Application to vary search warrant.
Held: Refused. . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Commercial, Litigation Practice

Updated: 25 October 2022; Ref: scu.599632

PNM v Times Newspapers Ltd and Others: CA 1 Aug 2014

The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however remain anonymised until the outcome of an appeal to the Supreme Court.
Sharp LJ acknowledged ‘a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances’

Judges:

Lord Dyson MR, Sharp, Vos LJJ

Citations:

[2014] EWCA Civ 1132, [2014] WLR(D) 371, [2014] CP Rep 48, [2014] EMLR 30, [2015] 1 Cr App R 1

Links:

Bailii, WLRD

Statutes:

Contempt of Court Act 1981 4(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – PNM v Times Newspapers Ltd and Others QBD 22-Oct-2013
The claimant had been arrested on allegations of serious child sex abuse. The court now considered an application for a continuation or cancellation of an interim non-disclosure order.
Held: The application for a non-disclosure order was . .

Cited by:

Appeal from – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Cited – Re Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 24 October 2022; Ref: scu.535521

Stafford Winfield Cook and Partners v Winfield: 1981

Citations:

[1981] 1 WLR 458

Statutes:

Supreme Courts Act 1981 69(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Parsons, Parsons v Provincial Insurance Plc CA 20-Feb-1998
The insurers refused to pay on a fire claim, saying that it was started by the insured, that the proposal was incorrect, and that in extending the value insured, the insured had misrepresented the situation. The court considered whether a jury trial . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 24 October 2022; Ref: scu.376000

McKeown v British Horseracing Authority: Admn 12 Mar 2010

The judge had been asked to revise his draft judgment. The court set out the circumstances under which a draft judgment might be amended and why in this case he had rejected the request save as to clerical errors.

Judges:

Stadlen J

Citations:

[2010] EWHC 508 (Admin)

Jurisdiction:

England and Wales

Citing:

Principal Judgment – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa QBD 3-May-2001
The court had handed to the parties a draft judgement, but one party then asked the judge to reconsider it.
Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
Cited – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 24 October 2022; Ref: scu.402621

Peter Clarkson Reed v Sreemutty Gourmoney Dabee: 9 May 1857

Recognizance entered into to abide the determination of an appeal vacated upon petition of the Appellant, upon the abandonment of the appeal.

Citations:

[1857] EngR 520 (A), (1857) 6 Moo Ind App 490, [1857] EngR 521, (1857) 11 Moo PC 151, (1857) 14 ER 652, [1857] UKPC 15

Links:

Commonlii, Commonlii, Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 24 October 2022; Ref: scu.290266

Mann v O’Neill: 31 Jul 1997

High Court of Australia – Courts should be reluctant to extend the immunity given to witnesses: ‘the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’
Defamation – Absolute privilege – Absolute privilege only attaches out of necessity – Judicial and quasi-judicial proceedings – Complaint procedures and disciplinary proceedings – Letter to Attorney-General questioning special magistrate’s fitness to hold office – Letter not a step in disciplinary proceedings – Letter invoked investigative function equating with prosecuting authority’s function – Not necessary that statements to prosecuting authorities be absolutely privileged – Complaints to prosecuting authorities enjoy qualified privilege.

Citations:

(1997) 71 ALJR 903, (1997) 191 CLR 204, (1997) 145 ALR 682, (1997) 12 Leg Rep 21, [1997] Aust Torts Reports 81-436

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation

Updated: 24 October 2022; Ref: scu.245753

Taylor v Davies: PC 19 Dec 1919

(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the conduct of assignments for the benefit of creditors. Twelve years after the conveyance creditors commenced proceedings to set it aside. The mortgagee relied on the statute of limitations.
Held: He was entitled to do so. The Board rejected the argument that the mortgagee was an express trustee.
Viscount Cave said: ‘The expressions ‘trust property’ and ‘retained by the trustee’ properly apply, not to a case where a person having taken possession of the property on his own behalf is liable to be declared a trustee by the Court; but rather to a case where he originally took possession upon trust or on behalf of others. In other words they refer to cases where a trust arose before the occurrence of the transaction impeached and not to cases where it arises only by reason of that transaction. The exception no doubt applies, not only to an express trustee named in the instrument of trust, but also to those persons who under the rules explained in Soar v Ashwell and other cases are to be treated as being in a like position; but in their Lordships’ opinion it does not apply to a mere constructive trustee of the character described in the judgment of Sir William Grant.’
Viscount Cave said: ‘The possession of an express trustee was treated by the Courts as the possession of his cestuis que trustent, and accordingly time did not run in his favour against them. This disability applied, not only to a trustee named as such in the instrument of trust, but to a person who, though not so named, had assumed the position of a trustee for others or had taken possession or control of the property on their behalf such (for instance) as the persons enumerated in the judgment of Bowen L.J. in Soar v Ashwell or those whose position was in question in Burdick v Garrick, In re Sharpe, Rochefoucauld v Boustead, and Reid-Newfoundland Co v Anglo-American Telegraph Co. These persons, though not originally trustees, had taken upon themselves the custody and administration of property on behalf of others; and though sometimes referred to as constructive trustees, they were, in fact, actual trustees, though not so named. It followed that their possession also was treated as the possession of the persons for whom they acted, and they, like express trustees, were disabled from taking advantage of the time bar. But the position in this respect of a constructive trustee in the usual sense of the words – that is to say, of a person who, though he had taken possession in his own right, was liable to be declared a trustee in a Court of equity – was widely different, and it had long been settled that time ran in his favour from the moment of his so taking possession. This rule is illustrated by the well-known judgment of Sir William Grant MR in Beckford v Wade.”
(Supreme Court of Calcutta) Recognizance entered into to abide the determination of an appeal vacated upon petition of the Appellant, upon the abandonment of the appeal.

Judges:

Viscount Cave, Viscount Cave, Sumner, Parmoor LL

Citations:

[1920] AC 636, [1919] UKPC 136

Links:

Bailii, Bailii

Jurisdiction:

Canada

Cited by:

Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Cited – Clarkson and Another v Davies and Others PC 23-Oct-1922
Ontario – Discussing the Taylor case, the Board said: ‘ . . it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arise only by reason of that transaction.’ . .
Lists of cited by and citing cases may be incomplete.

Limitation, Equity, Litigation Practice

Updated: 24 October 2022; Ref: scu.187432

Barry Young (Deceased) v Western Power Distribution (South West) Plc: CA 18 Jul 2003

The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His widow sought to pursue an action, but it was claimed that this was out of time.
Held: The first action was timeous. Section 33 was not available to the widow to provide a discretion for the judge to allow her action. Time began running for her on receipt of the post mortem report. There were no exceptional circumstances to justify the availability of any discretion in the judge. As to Walkley: ‘The rationale of the Walkley principle is, as already explained, that it is not the time limit in section 11 which prejudices the claimant in such circumstances but rather the fact that he had previously commenced timeous proceedings which, for whatever reason, were not then successfully pursued.’

Judges:

Lord Justice Laws Lord Justice Mummery Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 1034, Times 18-Jul-2003, [2003] 1 WLR 2868, [2003] 1 WLR 2868

Links:

Bailii

Statutes:

Limitation Act 1980 11 12 33

Jurisdiction:

England and Wales

Citing:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .
Cited – Thompson v Brown Construction (Ebbw Vale) Ltd HL 1981
The plaintiff’s solicitors, out of negligence, failed to issue a writ until one month after the limitation period had expired. The application to extend the period was rejected at first instance since he had an unanswerable claim against his . .
Cited – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .
Cited – Mcevoy v AA Welding and Fabrication Ltd CA 15-Dec-1997
Where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation.
Held: The Walkley principle does not apply to . .
Cited – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
Cited – Piggott v Aulton (Deceased) CA 29-Jan-2003
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant . .
Cited – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .
Cited – Clay v Chamberlain QBD 2002
The claimant sought the judge’s discretion to disapply the rule in Walkley. The judge characterised the defendant’s conduct as ‘though not improper, sufficiently blameworthy to result in a situation which was at any rate analogous to an estoppel and . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Stubbings v Webb and Another HL 10-Feb-1993
Sexual Assault is not an Act of Negligence
In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .

Cited by:

Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 24 October 2022; Ref: scu.184885

Chief Constable of Thames Valley Police v Hepburn: CA 13 Dec 2002

The claimant sought damages from the police. They had executed a search warrant, and one officer detained the claimant during the raid.
Held: A person who mistakenly restrained an individual in the mistaken belief that he had been lawfully arrested is liable for trespass to the person. The terms of the warrant had to be carefully applied. The warrant provided for a search of the premises, but included no power to detain a person found on the premises. A citizen’s freedom of movement is inviolable save under express power: ‘honest belief in a non-existent state of affairs does not excuse a trespass to the person’. An obstruction could give a power of arrest, but there was no implied power as suggested by the Chief Constable. Late amendments of the sort allowed here should be discouraged.

Judges:

Lord Justice Brooke, Lord Justice Sedley, Lord Justice Tuckey

Citations:

[2002] EWCA Civ 1841, Times 19-Dec-2002, [2002] All ER (D) 214, [2002] Po LR 38

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984

Jurisdiction:

England and Wales

Cited by:

Cited – Keegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
Distinguished – Director of Public Prosecutions v Meaden Admn 1-Dec-2003
The defendant had been charged with assaulting a police officer in the execution of his duty. The prosecutor appealed a finding of no case to answer. He had been present in a house when the police executed search warrants. He had refused to obey an . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Lists of cited by and citing cases may be incomplete.

Police, Torts – Other, Litigation Practice

Updated: 24 October 2022; Ref: scu.178445

AEI Rediffusion Music Ltd v Phonographic Performance Ltd: CA 1 Feb 1999

The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on costs. The Copyright Tribunal was wrong to award costs on an award to settle the terms of a license on the basis of costs following the event. The discretion and duties to allow for all factors were rather wider.
The court considered the approach to be taken on an appeal. Lord Woolf MR said ‘Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.’
The court considered the ability of an appellate court to review a decision of a first instance judge on matters with his discretion.

Judges:

Woolf MR, Mummery LJ, Mantell LJ

Citations:

Gazette 24-Mar-1999, Times 03-Mar-1999, [1999] 1 WLR 1507, [1999] EWCA Civ 834, [1999] 2 All ER 299, [1999] EMLR 335, [1999] CPLR 551, [1999] RPC 599

Links:

Bailii

Statutes:

Copyright Designs and Patents Act 1988 135D 135E

Jurisdiction:

England and Wales

Citing:

Appeal from – Phonographic Performance Ltd v AEI Rediffusion Music Ltd ChD 14-Jul-1997
An authorisation to broadcast sound recording included right to make back up tapes, but not to keep that back up beyond 28 days. Broadcasters are bound by an obligation to destroy copies of material which had been used for broadcast within 28 days . .

Cited by:

Cited – Budgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 24 October 2022; Ref: scu.119308

Brazier v News Group Newspapers Ltd: ChD 27 Jan 2015

The claimants alleged unlawful interception of their voicemail messages by the defendant. The defendant now applied for the strike out of the claims, saying that they were an abuse of process, earlier claims by the same claimants having been settled. The claimants said that the terms of the settlement did not cover additional occasions of interception discovered only later.
Held: The additional claims were covered and were struck out. The claimants had made their settlements knowing that they had not yet fully investigated the hacking activities of the defendants.

Judges:

Mann J

Citations:

[2015] EWHC 125 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 24 October 2022; Ref: scu.541920

Adams and Others v Ford and Others: CA 26 Apr 2012

The several claimants had invested in a technology based investment scheme, which they now said was fraudulent. The defendants said that the original, large number of claimants had been reduced, but the lawyers acting for the claimants had issued proceedings without the authority all claimants, and that therefore the claim was an abuse of process and should be struck out.
Held: Such an action need not always be abuse of process since a named party would remain able to adopt the proceedimgs.

Judges:

Arden, Toulson, Black LJJ

Citations:

[2012] 3 All ER 247, [2012] EWCA Civ 544, [2012] WLR(D) 125, [2012] CP Rep 31, [2012] 1 WLR 3211

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Applied – Presentaciones Musicales Sa v Secunda and Another CA 29-Nov-1993
A writ was issued within the limitation period applicable to the cause of action. However, the authority of the nominal plaintiff was not obtained within the limitation period.
Held: The adoption by a plaintiff of proceedings issued without . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 23 October 2022; Ref: scu.452998

DKH Retail Ltd v Republic (Retail) Ltd: ChD 3 Apr 2012

The claimant had begun its action complaining of infringement of unregistered design right in the High Court. The defendant applied to have the case heard in the Patents County Court.
Held: The current practice, under which such a decision was made by the transferring court was the correct one, and was within the Civil Procedure Rules.

Judges:

Birss QC J

Citations:

[2012] EWHC 877 (Ch), [2012] WLR(D) 109, [2012] Bus LR 1363

Links:

Bailii, WLRD

Statutes:

Civil Procedure Rules

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice

Updated: 23 October 2022; Ref: scu.452449

Caterpillar Logistics Services (UK) Ltd v De Crean: CA 21 Feb 2012

The claimant company sought to restrain its former employee from anticipated misuse of its confidential information.
Held: Stanley Burnton LJ, in a paragraph with which the other members of the court agreed, said: ‘[counsel for the claimant] told the judge that it was normal practice in claims for confidentiality injunctions for the service of particulars of claim to be deferred until after the application for an interim injunction has been dealt with. If that is the normal practice, I consider that it should be discontinued. Like Tugendhat J, I consider that it is in the interests of justice and the efficient and fair conduct of proceedings that the claimant’s case be defined and pleaded as soon as possible, so that the defendant knows precisely what is the case against her, and so does the judge’
The court’s power (confirmed by the court) to grant barring out relief should only exceptionally be used in support of an action by an employer against an employee.

Judges:

Maurice Kay LJ, Staney Burnton LJ, Lewison LJ

Citations:

[2012] EWCA Civ 156, [2012] 3 All ER 129, [2012] ICR 981, [2012] CP Rep 22, [2012] FSR 33, [2012] WLR(D) 40

Links:

Bailii, WLRD

Statutes:

Senior Courts Act 1981 37

Jurisdiction:

England and Wales

Cited by:

Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Information

Updated: 23 October 2022; Ref: scu.451446

Berezovsky v Hine and Others (1716): ChD 7 Jul 2011

The court heard the defendant’s application to strike out certain elements of the claimant’s pleadings.

Judges:

Mann, Gloster JJ

Citations:

[2011] EWHC 1716 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Berezovsky v Hine and Others (1777) ComC 7-Jul-2011
Claimant’s application for an order requiring the parties to rely at trial on an expert report as to contemporary Russian history. . .
See also – Berezovsky v Hine and Others (1776) ChD 7-Jul-2011
The claimant requested the court to make an order requiring the parties to rely upon an expert’s report as to contemporary Russian history. . .

Cited by:

Cited – Berezovsky v Hine and Others CA 7-Oct-2011
The claimant appealed against an order for the disclosure to and use by the defendants of certain documents. . .
Cited – Berezovsky v Hine and Others (1718) ComC 7-Jul-2011
The court heard an application to strike out a claim against the fourth defendant. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 October 2022; Ref: scu.441637

Berezovsky v Hine and Others: CA 7 Oct 2011

The claimant appealed against an order for the disclosure to and use by the defendants of certain documents.

Judges:

Neuberger MR, Moses, Aldous LJJ

Citations:

[2011] EWCA Civ 1089

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Berezovsky v Hine and Others (1777) ComC 7-Jul-2011
Claimant’s application for an order requiring the parties to rely at trial on an expert report as to contemporary Russian history. . .
See Also – Berezovsky v Hine and Others (1776) ChD 7-Jul-2011
The claimant requested the court to make an order requiring the parties to rely upon an expert’s report as to contemporary Russian history. . .
Cited – Berezovsky v Hine and Others (1716) ChD 7-Jul-2011
The court heard the defendant’s application to strike out certain elements of the claimant’s pleadings. . .
Cited – Berezovsky v Hine and Others (1718) ComC 7-Jul-2011
The court heard an application to strike out a claim against the fourth defendant. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 October 2022; Ref: scu.445039

Berezovsky v Hine and Others (1777): ComC 7 Jul 2011

Claimant’s application for an order requiring the parties to rely at trial on an expert report as to contemporary Russian history.

Judges:

Mann, Gloster JJ

Citations:

[2011] EWHC 1777 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Berezovsky v Hine and Others (1776) ChD 7-Jul-2011
The claimant requested the court to make an order requiring the parties to rely upon an expert’s report as to contemporary Russian history. . .
See also – Berezovsky v Hine and Others (1716) ChD 7-Jul-2011
The court heard the defendant’s application to strike out certain elements of the claimant’s pleadings. . .
See Also – Berezovsky v Hine and Others (1718) ComC 7-Jul-2011
The court heard an application to strike out a claim against the fourth defendant. . .
See Also – Berezovsky v Hine and Others CA 7-Oct-2011
The claimant appealed against an order for the disclosure to and use by the defendants of certain documents. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 October 2022; Ref: scu.441758

Berezovsky v Hine and Others (1718): ComC 7 Jul 2011

The court heard an application to strike out a claim against the fourth defendant.

Judges:

Mann J, Gloster J

Citations:

[2011] EWHC 1718 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Berezovsky v Hine and Others (1777) ComC 7-Jul-2011
Claimant’s application for an order requiring the parties to rely at trial on an expert report as to contemporary Russian history. . .
See Also – Berezovsky v Hine and Others (1776) ChD 7-Jul-2011
The claimant requested the court to make an order requiring the parties to rely upon an expert’s report as to contemporary Russian history. . .
Cited – Berezovsky v Hine and Others (1716) ChD 7-Jul-2011
The court heard the defendant’s application to strike out certain elements of the claimant’s pleadings. . .

Cited by:

Cited – Berezovsky v Hine and Others CA 7-Oct-2011
The claimant appealed against an order for the disclosure to and use by the defendants of certain documents. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 23 October 2022; Ref: scu.441582

Medtia v Hamid and Another (Costs): CA 21 May 2004

Appeal against stay – costs

Citations:

[2004] EWCA Civ 666

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Medtia v Hamid and Another CA 21-May-2004
The claimant appealed an order after a trial in a construction dispute.
Held: The judge had not properly understood the figures before him in a difficult case. The judgment was adjusted accordingly . .

Cited by:

See also – Medtia v Hamid and Another CA 21-May-2004
The claimant appealed an order after a trial in a construction dispute.
Held: The judge had not properly understood the figures before him in a difficult case. The judgment was adjusted accordingly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 23 October 2022; Ref: scu.197812

Governor and Company of the Bank of Scotland v Henry Butcher and Co and others: CA 13 Feb 2003

The court fiercely criticised the failure of the defendant’s solicitors to follow the practice directions and to use references to the Weekly Law Reports wherever possible as citations. The court had been badly hampered in its hearing by that and other failures.

Judges:

Lord Justice Aldous, Lord Justice Chadwick, Mr Justice Munby

Citations:

Times 20-Feb-2003, [2003] EWCA Civ 67, Gazette 03-Apr-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Practice Direction (Court of Appeal: Citation of Authority) CA 23-Jun-1995
The direction gives precise guidance for citing cases before the Court of Appeal. Practitioners are to use Weekly Law reports citations first wherever available. . .
Cited – Practice Direction on the Citation of Authorities LCJ 9-Apr-2001
The court laid down rules for restricting the citation of authorities, which rules are to be applied in all courts except criminal courts. The increase in the number of judgments series being available had come to be problematic for all involved, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 October 2022; Ref: scu.179114