The court was asked to decide as a preliminary point whether the subject matter of this complaint was covered by a previous settlement between the parties.
Mr Justice Evans-Lombe
[2007] EWHC 2510 (Ch)
England and Wales
Updated: 09 September 2022; Ref: scu.260344
A plaintiff in a civil action who has issued a witness summons or subpoena to a witness to attend may have an action against a witness who fails to attend, but the damages recoverable were limited to the costs of an abortive hearing when the Plaintiff was non-suited.
(1848) 6 Dow and L 399, [1848] EngR 1014, (1848) 6 CB 703, (1848) 136 ER 1424
England and Wales
Cited – Re N CA 20-May-1999
The claimant was a victim of a rape. She alleged that the police had mishandled the prosecution, resulting in the dismissal of the charges against the defendant, which in turn, she said exacerbated her own post traumatic stress disorder.
Held: . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.224415
The applicant sought to have overturned an injunction made in children proceedings for the discharge of an injunction preventing publication of matters relating to a child application from 1994. The court replied that the injunction stood discharged, and therefore declined to issue the proceedings. Dr Pelling sought judicial review of that refusal. The court said that an alternative remedy still lay open to him.
Held: The officer who had declined to issue proceedings was qualified and authorised to do so and had made the correct decision.
[2006] EWCA Civ 697
England and Wales
Updated: 09 September 2022; Ref: scu.242359
[2006] EWCA Civ 631
England and Wales
Updated: 09 September 2022; Ref: scu.242149
Appeal from refusal of adjournment of trial where witness unable to attend for medical reasons.
[2021] EWCA Civ 221
England and Wales
Updated: 09 September 2022; Ref: scu.658874
[2020] EWHC 3643 (Ch)
England and Wales
Updated: 09 September 2022; Ref: scu.657802
Claimant’s claim for personal injury caused by alleged clinical negligence arising out of posterior instrumental fusion surgery
[2020] EWHC 3306 (QB)
England and Wales
Updated: 09 September 2022; Ref: scu.656944
Appeal by the Competition and Markets Authority (‘the CMA’) from the order of Deputy Master Henderson dated 11 March 2019, directing that the CMA’s claim against the respondents, Care UK Health and Social Care Holdings Limited, and Care UK Community Partnerships Limited, should proceed under CPR Part 7 rather than CPR Part 8, and making consequential directions for the exchange of pleadings and costs.
Ms Kelyn Bacon QC
[2019] EWHC 2828 (Ch)
England and Wales
Updated: 09 September 2022; Ref: scu.643887
Injunction discharged
Sir Andrew Morritt Ch, Toulson, Sullivan LJJ
[2011] EWCA Civ 513
England and Wales
Updated: 08 September 2022; Ref: scu.434840
[1845] EngR 447, (1845) 6 QB 878, (1845) 115 ER 331
England and Wales
Updated: 07 September 2022; Ref: scu.303589
[1837] EngR 832, (1837) 7 Ad and E 261, (1837) 112 ER 470
England and Wales
Updated: 07 September 2022; Ref: scu.313949
[1850] EngR 824, (1850) 15 QB 1004, (1850) 117 ER 738
England and Wales
Updated: 07 September 2022; Ref: scu.298171
The tenant had a Rent Act tenancy. The landlord failed to repair the premises, and he was unable to occupy them. The present appellant landlord took an assignment of the freehold, and sought possession for arrears of rent. The first proceedings were compromised with the tenant retaining the tenancy, and the landlord agreeing to carry out repairs. Works were done, and the landlord applied for a refixing of the rent. The defendant said the repairs had not been carried out satisfactorily, and refused still to pay rent. The judge found that the repairs had been completed, and that the tenant still had a statutory tenancy. The landlord said that the failure to occupy the property since that time now allowed that assertion.
Held: The landlord’s appeal was dismissed. The earlier case had been settled on terms which presumed the continuation of the tenancy. The landlord had also applied for a rent increase on the same basis. That created an estoppel to prevent the landlord now to deny it. It was clear that the tenant had not abandoned his intention to return.
Ward LJ, Smith LJ, Cresswell J
[2006] EWCA Civ 767, Times 28-Jun-2006
England and Wales
Cited – Mills v Cooper QBD 1967
Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect . .
Cited – J Wright and H Wright v Newcastle Ltd and others CA 25-May-2002
Where proceedings were compromised, one could not say that the issues settled were res judicata but nonetheless it would be an abuse of process to allow the same issues to be relitigated later. If in later proceedings a party raised an issue which . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.242518
Application for permission to appeal. Appellant not attending.
Mummery LJ
[2002] EWCA Civ 1454
England and Wales
Updated: 07 September 2022; Ref: scu.217556
Extension of time granted.
Morritt LJ
[1999] EWCA Civ 2059
England and Wales
Updated: 07 September 2022; Ref: scu.200706
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf in Wood v Gahlings, the allegation of fraud ‘can be clearly established’ or if, in the words of Lord Phillips (which come to the same thing) the fresh evidence or its effect is not ‘hotly contested’. In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside.’ As to Hamilton, ‘Those observations must be accorded every respect. I do not think that they can have been intended to depart from what was said in paragraphs 8 and 14. Whether that be right or wrong, it is clear that each case must be judged on its own merits. If this court takes the view that the fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action.’
Sir Martin Nourse
[2002] EWCA Civ 1297
England and Wales
Considered – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.197975
The landowner sought to recover possession of land occupied under an agreement by a mobile home owner.
Held: It was necessary for the land owner to show that he had complied with the requirements under the Act. It was insufficient for the matters to be admitted in the pleadings. Pleadings are not superfluous and are still ‘critical to identify the issues’.
Lord Phillips MR said: ‘It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.’ The court rejected the submission that the court should ‘disregard the pleading rather than . . close its eyes to what are admitted to be the true facts’.
Lord Justice Buxton Lord Phillips Master Of The Rolls Lord Justice Thomas
[2004] EWCA Civ 173, Times 27-Feb-2004
Mobile Homes Act 1983 Sch 1 para 4(a)
England and Wales
Cited – Regina v Newcastle upon Tyne County Court, ex parte Thompson 1988
. .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Rhone-Poulenc Rorer International Holdings Inc and Another v Yeda Research and Development Co Ltd ChD 16-Feb-2006
The patent application had been presented to the European Patent Office and granted only after 13 years. The claimant now appealed refusal to allow amendment of its claim to allow a claim in its sole name. The defendant argued that it was out of . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.193908
Whether the Upper Tribunal has jurisdiction under Part 4 of the Electronic Communications Code, to impose Code rights over land in favour of an operator which is already in occupation of the same land under a tenancy granted before the Code came into force; and which is continuing after its contractual expiry date under section 24(1) of the Landlord and Tenant Act 1954. In more precise terms, the UT was answering a preliminary issue framed in the following terms:
‘Whether the Tribunal has jurisdiction to impose a Code agreement pursuant to paragraph 20 of the Code in circumstances where there is an existing 1954 Act protected tenancy in place.’
Davis, Lewison, Arnold LJJ
[2021] EWCA Civ 90, [2021] WLR(D) 67
England and Wales
Updated: 07 September 2022; Ref: scu.657387
Lord Justice Males
[2021] EWCA Civ 11
England and Wales
Appeal from – Motorola Solutions, Inc and Others v Hytera Communications Corporation Ltd and Others ComC 24-Apr-2020
Grant of domestic freezing injunction to support US proceedings. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.657122
Teare J
[2019] EWHC 2949 (Comm)
England and Wales
Updated: 07 September 2022; Ref: scu.643817
The defendant had been sued in defamation, and now sought release of police records as to the claimant.
Tugendhat J
[2011] EWHC 776 (QB)
England and Wales
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
See Also – Commissioner of Police of The Metropolis and Another v Times Newspapers Ltd and Another QBD 24-Oct-2011
The claimant accused the defendant newspaper and journalist of breach of confidence, conversion and Data Protection breach. They said that he had received and published extracts from a confidential internal document leaked to him. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.432864
Petro sought to enforce an arbitration award in its favour under a bunker contract. CMA obtained a stay on enforcement. It then offered to release the stay but on terms unacceptable to Petro.
Laws, Jackson, Tomlinson LJJ
[2011] EWCA Civ 461
England and Wales
Cited – Totsa Total Oil Trading Sa v Bharat Petroleum Corp Ltd ComC 14-Jan-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.432835
Mann, Gloster JJ
[2010] EWHC 2044 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.432739
The court was asked whether the seventeenth defendant, Mr Anatoly Ereshchenko, should be ordered to attend for cross-examination in respect of his purported compliance with a disclosure order made against him.
Henderson J
[2011] EWHC 843 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.431757
The claimant intended to seek damages from the respondent after he saying he had been tortured whilst in the custody of the United States, and sought disclosure of documents to establish the respondent’s complicity in his treatment.
Sullivan LJ, Lloyd Jones J
[2009] EWHC 3316 (Admin)
England and Wales
Updated: 06 September 2022; Ref: scu.384128
[1846] EngR 1140 (B), (1847) 9 QB 802
England and Wales
Updated: 06 September 2022; Ref: scu.303035
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up to the defendants in the earlier proceedings and it was implicit in those proceedings that this would follow.
Arden, Neuberger, Richards LJJ
[2009] EWCA Civ 297
England and Wales
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 . .
Appeal from – Walbrook Trustees (Jersey) Ltd and others v Fattal and others ChD 7-May-2008
Further case management in substantial case after additional pleadings. . .
See Also – Walbrook Trustee (Jersey) Ltd and others v Fattal and others CA 11-Mar-2008
Applications between consortium members as to management of apartment block.
Lawrence Collins LJ said: ‘ . . an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has . .
Cited – Stuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
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 – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – Kammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
Cited – Kosmar Villa Holidays Plc v Trustees of Syndicate 1243 CA 29-Feb-2008
The court considered the difference between waiver by election and waiver by estoppel. Rix LJ said: ‘election is the exercise of a right to choose between inconsistent remedies’ and ‘generally requires knowledge of all the facts giving rise to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.331094
Warren J
[2007] EWHC 2438 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.260074
Without notice oral applications for permission to appeal made by litigants in person are not the stuff of which reserved judgments, law reports or publicity in the media are made.
Wall LJ
2007] 1 FLR, [2006] EWCA Civ 1199
England and Wales
Cited – Re W (Children), GW (The Father) Litigant in Person CA 26-Jul-2007
The father sought to appeal an order with respect to contact with his children, alleging ‘that the reasons he is not having contact with his children are a combination of maternal deceit, the deliberate alienation of the children from him by their . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.244679
[2006] EWCA Civ 538, [2006] 1 WLR 1704
Industrial and Provident Societies Act 1965
England and Wales
Appeal from – Stansell Ltd v Co-Operative Group (CWS) Ltd ChD 22-Jul-2005
. .
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.241573
May LJ noted: ‘an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons’.
Lord Justice Dyson Lord Justice May
[2006] EWCA Civ 519, [2006] 1 WLR 2462
England and Wales
See also – Armstrong v Times Newspapers Ltd and others QBD 17-Dec-2004
Eady J said: ‘repetitive and loose talk about questions can convey the impression there are reasonable grounds to suspect.’ . .
See also – Armstrong v Times Newspapers Ltd and David Walsh, Alan English CA 29-Jul-2005
The claimant sought damages after publication by the first defendant of articles which it was claimed implied that he had taken drugs. The paper claimed qualified privilege, and claimed Reynolds immunity.
Held: The defence of qualified . .
See also – Armstrong v Times Newspapers Ltd and others QBD 7-Dec-2005
. .
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.242464
Appeal from case management decision refusing adjournment – successful.
[2005] EWCA Civ 1570
England and Wales
Updated: 06 September 2022; Ref: scu.237492
Application for leave to appeal.
[2001] EWCA Civ 1124
England and Wales
Updated: 06 September 2022; Ref: scu.218329
Renewed appllication for leave to appeal refused.
[2002] EWCA Civ 1417
England and Wales
Updated: 06 September 2022; Ref: scu.217558
Application for payment of costs before appeal
[2002] EWCA Civ 1419
England and Wales
Updated: 06 September 2022; Ref: scu.217567
Three applications for permission to appeal.
[2002] EWCA Civ 1302
England and Wales
Updated: 06 September 2022; Ref: scu.217546
Claim for damages after lifting of freezing order.
Chadwick LJ, Charles J
[2002] EWCA Civ 484
England and Wales
Updated: 06 September 2022; Ref: scu.216910
[2003] EWCA Civ 1897
England and Wales
See Also – Mahajan v Waldman and others (Future restraint) CA 10-Dec-2003
. .
See Also – Waldman v Mahajan CA 29-Nov-2002
Refusal of party’s request privately to record court hearings. . .
See Also – Mahajan v Waldman and others (Future restraint) CA 10-Dec-2003
. .
See Also – Waldman v Mahajan CA 29-Nov-2002
Refusal of party’s request privately to record court hearings. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.193667
[2004] EWCA Civ 444
England and Wales
Updated: 06 September 2022; Ref: scu.195898
Pickford LJ rationalised the relation between a state and the crew of a requisitioned vessel as being one of forced hiring.
Bankes LJ said: ‘The position is, I think, quite clearly indicated in the passage from Clerke [Praxis Curiae Admiralitatis], cited with approval by Jeune J (sic). in The Dictator … where the writer says that after appearance the case proceeds ‘ut in actione instituta contra personam debitoris’ – that is to say, that the action is to proceed as if, but only as if, it was an action in personam. The advantage of the action being an action in rem still remains in the sense that, should the exceptional occasion arise, the Court in a proper case would no doubt still have jurisdiction to order the arrest of the vessel.’
Pickford LJ, Bankes LJ
[1916] P 64
England and Wales
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.644060
Application the defendants sought permission to re-amend their defence and to add a counterclaim, raising for the first time pleas of rectification and estoppel by convention.
[2011] EWHC 3179 (Ch)
England and Wales
See Also – K/S Victoria Street v House of Fraser (Stores Management) Ltd and Others CA 27-Jul-2011
The agreement provided that the guarantors to the original lease should act also as guarantors on any assignment. The tenant challenged this provision saying that it contravened the requirements of section 25 of the 1995 Act. HoF contended that such . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.449870
A motion to enforce a Tomlin settlement was not itself a court proceeding and a court had no power to award interest on late payments when this could have been included in the settlement if seen to be appropriate. Notice of motion was not a proceeding.
Times 25-Nov-1998
England and Wales
Updated: 06 September 2022; Ref: scu.79803
The court set down a non-exhaustive list of factors to be considered where one party wanted to bring in its own expert after the court had ordered a single joint expert. These were: the number of dispute were the expert’s evidence was expected to be relevant, the reasons asserted for needing the additional expert, the amount at stake, the likely effect on the trial, including any delay, any other special features, and the overall justice to the parties.
Times 13-Feb-2001
England and Wales
Updated: 06 September 2022; Ref: scu.79519
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into court of the amount of the award, saying that the appellant did not otherwise have the assets within the jurisdiction. Floyd LJ so ordered. The court was now asked to address the principles by reference to which the Court of Appeal should determine such an application; and in particular to identify the principles by reference to which it should appraise a respondent’s contention that an appellant’s financial relationship with a wealthy third party is such as to defeat its complaint that such a condition would stifle its appeal.
Held: The appeal succeeded (Lords Clarke of Stone-cum-Ebony and Carnwath dissenting as to the effect) and the case remitted to the Court of Appeal to determine the appellant’s application for discharge of the condition by reference to the correct criterion.
Under Article 6 there will seldom be a ‘fair hearing’ if a court has permitted an appeal but then, by indirect means, does not permit him to bring it. It is for the appellant to establish on the balance of probabilities that a proposed condition would stifle the prosecution of its appeal. The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed.
Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge
[2017] UKSC 57, [2017] WLR(D) 560, [2017] 1 WLR 3014, UKSC 2016/0039
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170427 am video
Civil Procedure Rules 52.9(1)(c), European Convention on Human Rights 6
England and Wales
At ChD – Goldtrail Travel Ltd v Aydin and Others ChD 22-May-2014
Claim by company liquidators against former directors alleging misappropriation of company assets, and dishonest assistance. . .
At CA – Goldtrail Travel Ltd v Aydin and Others CA 21-Jan-2016
Application for stay of execution of judgment pending appeal . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – M V Yorke Motors v Edwards HL 1982
A sale of a second hand Rolls Royce had gone wrong. The plaintiff was claiming damages of 23,250 pounds. The plaintiff sought Order 14 summary judgment. That was refused, and the Master gave leave to defend without any conditions. The plaintiff . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Criticised in part – Hammond Suddard, Solicitors v Agrichem International Holdings Limited CA 18-Dec-2001
The appellant sought staying the order for him to pay costs pending the results of an appeal, and the respondent sought security for costs in fighting the appeal, and a striking out in default of payment, and for security for payment of the . .
Cited – Societe Generale SA v Saad Trading, Contracting and Financial Services Company and Another CA 23-May-2012
The Court was asked to determine applications by Societe Generale SA, which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.591358
The Court was asked to determine applications by Societe Generale SA, which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first appellant was a limited Saudi Arabian partnership and the second appellant was a general partner of Saad and owned 90% of its share capital. One of the bank’s applications was for a condition to be imposed upon the continuation of each of the appeals that the appellants should pay the award of US$49m into court; to which the appellants each responded that any order for payment into court would stifle their appeals.
Held: A condition, which it proceeded to impose, for their joint and several payment into court of (only) $5m would not stifle their appeals. In reaching this conclusion Aikens LJ punctiliously addressed the factors identified by the court as relevant in the Hammond Suddard case.
Rimer, Aikens LJJ
[2012] EWCA Civ 695
England and Wales
Appeal from – Societe Generale Sa v Saad Trading and Another ComC 5-Oct-2011
. .
Applied – Hammond Suddard, Solicitors v Agrichem International Holdings Limited CA 18-Dec-2001
The appellant sought staying the order for him to pay costs pending the results of an appeal, and the respondent sought security for costs in fighting the appeal, and a striking out in default of payment, and for security for payment of the . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.459688
The claimants sought damages, alleging that the defendants had hacked into their e-mail accounts. The defendant now sought protection of her identity through anonymisation of the case.
Held: Granted.
Tugendhat J
[2011] EWHC 674 (QB)
Cited – Duchess of Argyll v Duke of Argyll ChD 1967
An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – JIH v News Group Newspapers Ltd (No. 2) QBD 18-Nov-2010
Explanation of reasons for anonymity order. . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Gray v UVW QBD 21-Oct-2010
Application was made for the name of the defendant not to be published.
Held: To the extent that a claimant seeks an order for the anonymisation of any reports of the SOPO proceedings, then that jurisdiction derives from section 6(1) of the . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.430749
[1850] EngR 223, (1850) 4 Exch 818, (1850) 154 ER 1447
England and Wales
Updated: 04 September 2022; Ref: scu.297570
Appeal from order for disclosure of medical report
[2009] NIQB 17
Northern Ireland
Updated: 04 September 2022; Ref: scu.346494
The court considered what would amount to a waiver of professional legal privilege.
Held: Waiver applied to the ‘transaction’ in question, which might go beyond the actual document (or privileged information) disclosed, and suggested the following approach:
‘(i) One should identify the ‘transaction’ in respect of which the disclosure has been made
(ii) That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by counsel on a single occasion.
(iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
(iv) When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed.’
Mann J
[2006] EWHC 2017 (Ch)
England and Wales
Appeal from – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones (A Firm) CA 28-Feb-2008
. .
Applied – Dore and Others (‘Bothca’) v Leicestershire County Council and Others ChD 15-Jan-2010
The claimants asserted rights as against the council to lease and occupy premises. They sought disclosure of documents prepared for the council by its lawyers who had previously released information which might have been legally provileged. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.244112
Reasons for grant of injunction to restrain the Defendants from publishing private information and other information detrimental to the Claimant and ordering them to remove a particular video from the internet.
Morris J
[2021] EWHC 475 (QB)
Protection from Harassment Act 1997 191)
England and Wales
Updated: 03 September 2022; Ref: scu.659221
Application to strike out claim as abuse of process
[2020] EWHC 3463 (QB)
England and Wales
Updated: 03 September 2022; Ref: scu.656951
Morton LJ criticised an application to vary an undertaking given to it: ‘ . . the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application should be an application for release . . Litigants are not ordered to give these undertakings; they choose to give them, and an application to have an undertaking already given varied is wholly wrong in form.’
A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust. The changed circumstances must be established by evidence, and the onus rests upon the person seeking to vary the consent or interim order to establish those changed circumstances.
Morton LJ said: ‘Litigants are not ordered to give . . undertakings; they choose to give them…’
Morton LJ
[1945] 1 All ER 103
England and Wales
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Appeal from – Cutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.643866
Salter QC HHJ
[2019] EWHC 2058 (Comm)
England and Wales
Updated: 03 September 2022; Ref: scu.642085
The claimant appealed against a refusal to continue an injunction restraining the disclosure of confidential information.
Sedley LJ
[2010] EWCA Civ 1456
England and Wales
Updated: 03 September 2022; Ref: scu.430480
In a personal injury claim, the court was asked: ‘If the claimant has obtained a medical report from expert A, but chooses not to rely on it, and the leave he seeks is to rely on the evidence of expert B in the same field, ought he to be put on terms that before he can rely on B, he must disclose what A has said?’
[2011] EWCA Civ 136
England and Wales
Updated: 03 September 2022; Ref: scu.430080
Rix LJ suggested that it may be that orders permitting alternative service are not unusual in the case of countries with which there are no bilateral treaties for service and where service can take very long periods of up to a year.
Rix, Wilson, Stanley Burnton LLJ
[2011] EWCA Civ 135, [2011] 1 WLR 3086, [2011] CP Rep 25
England and Wales
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.429647
Affidavit to ground an order for a plaintiff to give security to answer costs, when it doth not appear by the bill he lives abroad out of the jurisdiction of the Court, if
he hath left the kingdom since filing the bill, must go on and say, to settle abroad.
[1791] EngR 1515, (1791) Dick 775, (1791) 21 ER 472 (A)
England and Wales
Updated: 02 September 2022; Ref: scu.363030
Bail is not regularly put in till the allowance of it has been served, even though the plaintiff oppose the justification; and the sheriff is liable to an attachment for not bringing in his body, if the allowance be not served, though the bail justified.
[1791] EngR 1514, (1791) 4 TR 493, (1791) 100 ER 1138 (A)
England and Wales
Updated: 02 September 2022; Ref: scu.363029
In case for the disturbance of a ferry, a count alleging that the plaintiffs were entitled to a certain ferry across the Thames, that the defendants conveyed passengers and goods across the river near to the plaintiffs’ ferry, and that, by reason thereof, the plaintiffs lost profits, and were prejudiced and disturbed in the possession arid profit of their ferry, was held, after verdict for the plaintiffs to disclose a sufficient cause of action. – Where, on a motion in arrest of judgment a clear objection is not shewn, the party will be left to his writ of error
[1850] EngR 130, (1850) 9 CB 26, (1850) 137 ER 800
England and Wales
Updated: 02 September 2022; Ref: scu.297477
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act.
Held: A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
Munby J said: ‘There is an extensive jurisprudence analysing the means by which such applications can be brought before the court . . Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a district judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (Deceased) [1996] 1 FLR 692, at 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure) [1990] 2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, ‘the difficulties persist’. That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, [2002] 1 FLR 992, at para [11], the same judge observed that the law was in ‘a most unsatisfactory state’. It is now 2006 and little has been done, and nothing effective, to remedy matters.’
and . . ‘it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following:
(i) a fresh action to set aside the consent order;
(ii) an appeal;
(iii) an application to the judge at first instance’.
Munby J
[2006] EWHC 956 (Fam), [2008] 1 FLR 26
Matrimonial Causes Act 1973 23(1)(a)
England and Wales
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.263391
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his capacity to act, though alone it would not usually be enough to find a lack of capacity. In this case the claimant was declared to be a patient within the Act and the Rules.
Stanley Burnton J
[2006] EWHC 2895 (QB), Times 08-Dec-2006
Mental Health Act 1983, Civil Procedure Rules 21
England and Wales
Applied – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.246082
Application by respondent bank for security for costs.
[2006] EWCA Civ 1185
England and Wales
See Also – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.244456
Pre-action discovery
Jackson J
[2006] EWHC 1258 (TCC)
England and Wales
Updated: 02 September 2022; Ref: scu.242317
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The courts had been unhelpful to the parties appearing before them. If given access to confidential court documents, a McKenzie friend would be obliged to maintain their confidentiality, and a breach would be a contempt of court. The 2004 Act had relaxed some restrictions on publication of court cases. The Human Rights of the appellant were engaged by this decision. The court was particularly concerned to dispel any suggestion that a McKenzie Friend should not attend a directions hearing. The appeals succeeded.
Thorpe, Wall LJ
[2005] EWCA Civ 759, Times 27-Jun-2005, [2006] Fam 1, [2005] 3 WLR 1191
Children Act 2004 62, Administration of Justice Act 1960 12, Children Act 1989 97(2), European Convention on Human Rights 8.1, Family Proceedings Rules 1991 4.23
England and Wales
Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court. The friend’s conduct . .
Cited – In re G (a Child) (Contempt: Committal) CA 10-Apr-2003
The appellant had been made subject to a suspended committal to prison. He was involved with children proceedings, and had published details on the Internet which would make the social worker traceable.
Held: Where a contempt was not committed . .
Cited – Guidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
Cited – Representation of Children in Family Proceedings pursuant to FPR 1991 rule 9.5 5-Apr-2004
Guidance was given including the following: ‘A litigant in person wishing to have the help of a McKenzie Friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in . .
Cited – In re G (a Child) (Litigants in Person) CA 28-Jul-2003
The father of a child involved in a case before the court was acting in person. He wanted to seek advice from the Citizen’s Advice Bureau or the RCJ Personal Support Unit.
Held: The rules needed to be reconsidered so that a litigant in person . .
Cited – Collier v Hicks 7-Jun-1831
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal . .
Cited – Regina v Leicester City Justices, ex parte Barrow CA 1-Aug-1991
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had . .
Cited – In Re H (A Minor) (Chambers Proceedings: Mckenzie Friend) CA 6-May-1997
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the . .
Cited – Re G (Chambers Proceedings: McKenzie friend) CA 10-Jul-1991
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature . .
Cited – Re M (Contact: Family Assistance: McKenzie Friend) CA 1999
A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the . .
Cited – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Cited – Dombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
Cited – Re H (McKenzie Friend: Pre-Trial Determination) CA 2002
The judge had refused a father’s application to be assisted by a McKenzie friend (a Dr Pelling) on the ground that, having listened to and observed the proposed McKenzie friend, he felt that, with the father on his own, the hearing would be fairer, . .
Cited – Yousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.227088
Failure to comply with unless order
Lord Justice Ward Lord Justice Sedley
[2004] EWCA Civ 1813
England and Wales
Updated: 02 September 2022; Ref: scu.221682
Application by the claimants in the action for permission to appeal against a case management decision – disclosure of documents
[2002] EWCA Civ 677
England and Wales
Updated: 02 September 2022; Ref: scu.216909
[2002] EWCA Civ 739
England and Wales
Updated: 02 September 2022; Ref: scu.217053
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 the material did not relate to the case, and in the absence of evidence to the contrary that statement was to be accepted. As to the costs of transcribing tape recordings, the court was unable to find convincing direct authority, and made the costs costs in cause.
Tugendhat J
[2003] EWHC 2991 (QB)
England and Wales
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – 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 . .
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 – Loutchansky v Times Newspapers Limited (No 2) CA 12-Mar-2001
The defendants appealed against a refusal to allow them to amend their pleadings. They wished to include allegations as to matters which were unknown to the journalist at the time of publication.
Held: It is necessary for the defendants to . .
Cited – Saad Al-Fagih v HH Saudi Research and Marketing (UK) Ltd QBD 28-Jul-2000
The court considered the factors which the court should take into account when carrying out the balancing process with regard to the defence of qualified privilege because of the public interest: ‘Some factors relate to the quality, status and . .
Cited – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
Cited – Bayer v Harris Pharmaceuticals Ltd 1991
A disclosing party does not have to provide a translation of documents in a foreign language. . .
Cited – Maltez v Lewis ChD 27-Apr-1999
The right of a litigant, to choose his solicitor and counsel, is a fundamental one not to be set aside by mere rules of court. In particular the new rules should not be interpreted so as to achieve this. This is part of the principle of equality of . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.201653
Enforcement of charging order absolute.
The Honourable Mr Justice Peter Smith
[2004] EWHC 1908 (Ch)
England and Wales
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
See Also – Englefield and Another v Steinberg CA 26-Mar-2001
Application for leave to appeal out of time against an interim order in defamation claim.
Held: The defendant had not shown any good cause for setting the judge’s case management directions aside, nor that he should recuse himself. . .
See Also – Pritchard Englefield (A Firm) and Another v Steinberg SCCO 27-Mar-2003
. .
See Also – Steinberg v Pritchard Englefield (A Firm) and Another QBD 18-Jun-2003
. .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.199820
A sale of a second hand Rolls Royce had gone wrong. The plaintiff was claiming damages of 23,250 pounds. The plaintiff sought Order 14 summary judgment. That was refused, and the Master gave leave to defend without any conditions. The plaintiff appealed to the High Court which again refused summary judgment, only gave leave to defend conditional on the defendant paying pounds 12,000 into court. The defendant was receiving legal aid with a nil contribution, he was unemployed, and he was receiving supplementary benefit, and he could not meet the condition. The Court of Appeal allowed the appeal on the basis of a concession that a condition with which the defendant could not comply was equivalent to judgment for the plaintiff, and such a condition ought not to be imposed and substituted a condition that the defendant should pay pounds 3,000 into court. The evidence suggested that the defendant himself did not have pounds 3,000, but the court made the common sense assumption that he was likely to have relatives and friends who, if he was putting forward his defence in good faith, would be willing to help him to that more modest extent.
Held: Their Lordships dismissed his appeal. As to an order for security for costs, ‘If the sum ordered to be paid as a condition of granting leave to defend is one which the defendant would never be able to pay, then that would be a wrongful exercise of discretion, because it would be tantamount to giving judgment for the plaintiff notwithstanding the court’s opinion that there was an issue or question in dispute which ought to be tried.’ The court should take into account the fact that a litigant pleading impecuniosity ‘may have funds, he may have business associates, he may have relatives, all of whom can help him in his hour of need’.
Lord Diplock set out a proposition in the respondent’s case: ”(i) Where a defendant seeks to avoid or limit a financial condition by reason of his own impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the court. He should make full and frank disclosure.
(ii) It is not sufficient for a legally aided defendant to rely on there being a legal aid certificate. A legally aided defendant with a nil contribution may be able to pay or raise substantial sums.
(iii) A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the court by reason of the evidence placed before it.’ and continued ‘I see no reason to dissent from those submissions. They summarise conveniently the reasons why the judge and the Court of Appeal made leave to defend conditional upon the provision by Mr. Edwards of security in the sums that they respectively ordered.’
Lord Diplock
[1982] 1 WLR 444, [1982] 1 All ER 1024
England and Wales
Cited – North East Lincolnshire Borough Council v Millenium Park (Grimsby) Ltd CA 23-Oct-2002
An agreement was made for a redevelopment of land. The council sought an order requiring specific performance by the respondent of its obligations. The council sought summary judgment, which the respondent resisted claiming that it was presently . .
Cited – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.183133
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the investigation, and had not acted in a proper and businesslike manner. The judge refused an application to allow to be considered matters which had been raised in statements but not pleaded.
Held: At this stage, the issues were clearly in need of being settled, and judgment under Order 24 was inappropriate.
Lord Justice Brooke, Lord Justice Mance, And, Mr Justice Park
[2002] EWCA Civ 248, [2002] CLC 870, [2002] Lloyds Rep IR 612
England and Wales
See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
See Also – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales ChD 23-Oct-2009
The defendant had intervened in a solicitors’ firm insured by the claimants. The claimants sought access to files and accounting records so that it could defend insurance claims. The defendant denied access to files other than those on which claims . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.167717
Simon Brown LJ said: ‘Given the PCA’s right under section 76(7)(b) to such other information as they need for the purpose of reaching their section 76 decision, I am inclined to think that, if, after obtaining the complainant’s comments upon any other witnesses’ statements disclosed to him, they thought it necessary, they could require the investigation to be re-opened.’
Lord Justice Simon Brown
[2002] EWCA Civ 389, [2002] UKHRR 985
Police Act 1996 76(7)(b) 80(1)(a)
England and Wales
Appeal from – Regina (Green) v Police Complaints Authority and Others QBD 21-Dec-2001
The applicant complained about a breach of his human rights by police behaviour and sought to inspect statements made by eye witnesses to the incidents complained of. The Police Complaints Authority replied that it was necessary for their function . .
Appeal From – Regina v Police Complaints Authority ex parte Green HL 26-Feb-2004
Discovery was sought of statements created during the investigation of a complaint against a police officer. The claimant argued that a police officer had deliberately driven his car at him.
Held: The investigation by a separate police force . .
Cited – The Independent Police Complaints Commission, Regina (On the Application of) v Commissioner Of Police Of the Metropolis Admn 3-Jul-2009
Delay defeated Request for review
A police dog had bitten a child on his arrest. His mother complained and again at the handling of her complaint by the IPCC. The MPS had disciplined in accordance with a letter from the IPCC, and having acted refused to re-open the complaint.
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.170158
The Claimants sought an order for the Defendants to disclose the identity of their source of the confidential information contained in a draft advice the property of the Claimants and of the precise circumstances in which it came to the attention of the Defendants or any of them.
Morland Media
[2000] EWHC QB 130
England and Wales
Appeal from – John and Others v Express Newspapers and Others CA 26-Apr-2000
Where a party sought from a newspaper disclosure of the source of a journalists story, and an order for contempt in default he was under a duty first to attempt to find that source through other means. A failure even to try can be persuasive to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.135962
After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor level before seeking to enforce the order. When, following further flooding in breach of a reciprocal undertaking which the tenant had given to the court, the landlord applied for release from its undertaking, a recorder held that the court lacked jurisdiction to grant release from it.
Held: The recorder did have jurisdiction to grant release and that the court should itself exercise it.
Butler-Sloss LJ held that the principle applied to all civil litigation and at 613 that the fact that the undertaking was recorded as a prelude to a consent order was irrelevant.
‘I am in no doubt, therefore, that an undertaking wherever recorded which is accepted by the court can be discharged by the court at any stage if it is just to do so.’
Judge LJ stated that the principle was not confined to matrimonial proceedings.
Thorpe LJ held that the principle applied in the fields both of family law and of civil law.
Butler-Sloss, Judge, Thorpe LJJ
(1997) 30 HLR 608
England and Wales
Applied – Russell v Russell CA 1956
The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly . .
Cited – Mid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.643868
Application for permission to appeal against a case management decision of Supperstone J made on Friday 11 October refusing an urgent hearing of Liberty’s claim for judicial review against the Prime Minister based upon the claimant’s contention that he may act unlawfully by reference to his obligations under the European Union (Withdrawal) (No 2) Act 2019
The Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Dame Victoria Sharp DBE PQBD
[2019] EWCA Civ 1761
England and Wales
Updated: 02 September 2022; Ref: scu.642676
[2019] EWHC 2845 (QB)
England and Wales
Updated: 02 September 2022; Ref: scu.643108
Applications for extended civil restraint orders.
Richard Spearman QC , (sitting as a Deputy Judge of the Queen’s Bench Division)
[2019] EWHC 2278 (QB)
England and Wales
Updated: 02 September 2022; Ref: scu.642121
Application for an order that the First, Second and Fourth Defendants should file and re-serve defences that comply with CPR rule 16.5 and answer certain allegations which (it is said) their current defences fail to answer.
Peter Knox QC sitting as Deputy Judge of the High Court
[2019] EWHC 2643 (Ch)
England and Wales
Updated: 02 September 2022; Ref: scu.642629
Application brought seeking a declaration that entitlement to disclose a number of documents currently within its possession notwithstanding any legal professional privilege which the Respondents may assert, on the grounds that the ‘iniquity’ exception applies
Mrs Justice Moulder
[2019] EWHC 1754 (Comm)
England and Wales
Updated: 02 September 2022; Ref: scu.642068
Rix, Jacob, Tomlinson LLJ
[2011] EWCA Civ 88
England and Wales
Updated: 01 September 2022; Ref: scu.428537
The court was asked as to its jurisdiction under the 2000 Order to hear the desired appeals.
Maurice Kay VP LJ, Moore-Bick, Etherton LJJ
[2011] EWHC 104 (Ch)
Access to Justice Act 1999 (Destination of Appeals) Order 2000
England and Wales
Updated: 01 September 2022; Ref: scu.428521
The claimants had begun copyright infringement proceedings claiming that they represented the rights holders in pornographic films said to have been file shared by the defendants. Faced with insuperable difficulties, they purported to withdraw the cases intending to re-issue.
Held: Such a procedure required the permission of the court. It would amount to an abuse of process and was not to be supported.
Birss QC J
[2011] EWPCC 6
See Also – Media Cat Ltd v Billington PCC 17-Dec-2010
. .
Principal judgment – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – Golden Eye (International) Ltd v Maricar PCC 23-Sep-2011
In each of two cases, the claimant sued in copyright alleging that the defendant had made available copies of a film, to which it held the rights, for download from the internet.
Held: In view of the similarities in the case with the Media Cat . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.428482
The parties disputed whether their ancillary relief claim was to be heard under the Family Proceedings Rules or the Civil Procedure Rules where the substance was to seek an order setting aside assets transfers.
[2011] EWCA Civ 39
England and Wales
Updated: 01 September 2022; Ref: scu.428309
F brought proceedings here to seek the return of the child K to Poland from where she had been removed by M. F appealed against refusal of an order for K’s return, citing F’s delay.
Held: The appeal succeeded. The judge had not allowed for F’s lack of understanding of issues of international law: ‘this was the plainest case of abduction. The father’s only vulnerability was his delay between understanding the extent of the mother’s removal and activating the Hague remedy.’
The court considerd the imbalance between the parties in the availability of legal aid. Thorpe LJ said: ‘If a foreign national, albeit an abductor, is obliged to present a case involving specialist issues of international family law before a court in this jurisdiction without any legal representation, and perhaps, as here, without any of our language, it is very hard to see that there is the necessary equality of arms and thus the Article 6 rights to a fair trial.’
Munby LJ said: ‘Any dispassionate observer sitting in this court might be forgiven for thinking that there is unfairness in that state of affairs and something very far from the equality of arms which is supposed, consistently with Article 6 of the European Convention, to underlie proceedings of this sort as indeed all proceedings. Justice, as was memorably observed so many years ago, must not merely be done but must be seen to be done. Although I am confident that, despite the mother’s forensic disabilities, justice has been done, I am much less confident that any dispassionate observer having watched these proceedings today would think that justice has been seen to be done, given the disparity in the resources which the State has made available to the one litigant and not to the other.’
Thorpe, Munby LJJ, Coleridge J
[2010] EWCA Civ 1546, [2011] Fam Law 336, [2011] 1 FLR 1268
England and Wales
Cited – Re B (Litigants In Person: Timely Service of Documents) FD 30-Sep-2016
Respect for litigants in person – proper service
The court considered the situation where in an international child abduction application, papers were served at the door of the court on a party who was unrepresented, and who had little English.
Held: This was plainly wrong. In such cases it . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.428231
The parties sought preliminary decisions in their court action.
Briggs J
[2009] EWHC 2590 (Ch)
England and Wales
Cited – Lexi Holdings Plc v Luqman and others ChD 16-Nov-2007
. .
See Also – Lexi Holdings (In Administration) v Pannone and Partners ChD 18-Jun-2010
Opposed application for an order for the provision of further information under CPR 18.1. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.377215
[1858] EngR 586, (1858) El Bl and El 123, (1858) 120 ER 454
England and Wales
Updated: 01 September 2022; Ref: scu.289057
[2005] EWCA Civ 539
England and Wales
Updated: 01 September 2022; Ref: scu.225049
Newman J
[2006] EWHC 133 (QB)
England and Wales
See Also – Mid Suffolk District Council v Clarke QBD 7-Apr-2005
. .
Appeal from – Mid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.238439
[2002] EWCA Civ 375
England and Wales
Updated: 01 September 2022; Ref: scu.216905
[2001] EWCA Civ 799
England and Wales
Updated: 01 September 2022; Ref: scu.218201
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently carry on bookmaking in connection with dog races run on the track on that day. Breach of this provision carried a criminal sanction. A bookmaker who contended that he had not been provided with suitable space brought a claim for an injunction and damages against the operator of the track. His claim succeeded in the High Court but not in the Court of Appeal.
Held: The bookmaker’s appeal failed. There is a general rule of law that where a new statutory obligation is created which at the same time provides a special means of enforcing it, that performance cannot be enforced in any other manner. A law which was not intended to create legal rights and duties would be a mere ‘pious aspiration’. On a proper construction of the particular statute, there was no parliamentary intention to confer private rights of action on bookmakers at a racetrack: the intended enforcement of rights was by means of criminal prosecution.
Lord Simonds said: ‘I do not propose to try to formulate any rules by reference to which such a question can infallibly be answered. The only rule which in all circumstances is valid is that the answer must depend upon a consideration of the whole Act and the circumstances, including the pre-existing law in which it was enacted. But that there are indications which point with more or less force to the one answer or the other is clear from authorities which, even where they do not bind, will have great weight with the House. For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For if it were not so, the statute would be but a pious aspiration.’ and ‘As I have mentioned, sub-contractors experiencing undue delay would be able to enforce performance of the Revenue’s duty by an application for judicial review. The absence of a financial remedy for past losses does not deprive the statutory duty of substance.’
Lord Reid said: ‘I find it extremely difficult to reconcile the nature of the provisions of this sub-section with an intention to confer on individual bookmakers rights which each could enforce by civil action. If the legislature had intended to create such rights I would expect to find them capable of reasonably precise definition.’
As to a plea that Parliament should reveal its intention in plain words, Lord Du Parcq said: ‘Parliament must be taken to have known that if it preferred to avoid the crudity of a blunt statement and to leave its intention in that regard to be inferred by the courts, the ‘general rule’ would prevail unless the ‘scope and language’ of the Act established the exception. It cannot be supposed that the draftsman is blind to the principles which the courts have laid down for their own guidance when it becomes necessary for them to fill in such gaps as Parliament may choose to leave in its enactments.’
Lord Simonds, Lord Reid, Lord Du Parcq
[1949] AC 398
Betting and Lotteries Act 1934 11(2)(b)
England and Wales
Dictum Approved – Butler (or Black) v Fife Coal Co, Ltd HL 19-Dec-1911
The court considered whether a civil remedy existed for breach of statutory duty. Lord Kinnear said: ‘If the duty be established, I do not think there is any serious question as to civil liability. There is no reasonable ground for maintaining that . .
Appeal from – Cutler v Wandsworth Stadium Ltd CA 1945
Morton LJ criticised an application to vary an undertaking given to it: ‘ . . the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application . .
Cited – Issa (Suing By her Next Friend and Father Issa) and Issa (Suing By her Next Friend and Father Issa) v Mayor and Burgesses of London Borough of Hackney CA 19-Nov-1996
A Local Authority found guilty of a statutory nuisance is not thereby liable for a civil damages suit. . .
Cited – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 8-Feb-2001
The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Connor v Surrey County Council CA 18-Mar-2010
The claimant teacher said that she suffered personal injury from stress after the board of governors improperly failed to protect her from from false complaints. The Council now appealed against an award of substantial damages.
Held: The . .
Cited – Poulton v Ministry of Justice CA 22-Apr-2010
The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee . .
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.221530
The defendant had been ordered to remove a fence she had placed on land in breach of a court order. She had served a term of imprisonment for contempt, as had her mother who had encouraged her in the flouting of the court order. She now sought to appeal against the order.
Held: The underlying finding, that the land at issue was not hers was no longer itself in issue, and continued attempts by the respondent to re-open arguments long settled were pointless. The number of court orders, and defects in some of them had caused confusion, but there was no fundamental fault. Appeal refused.
The court had a discretion to dispense with personal service of a document containing a penal notice, but in deciding whether to exercise that discretion, the court would need to be satisfied that the purposes of the requirements had been achieved.
The Vice-Chancellor Lord Justice Potter Lord Justice Carnwath <
[2002] EWCA Civ 1402
England and Wales
Cited – Hydropool Hot Tubs Ltd v Roberjot and Another ChD 4-Feb-2011
The parties disputed ownership of a customer database. An interim order had been made prohibiting the defendants’ from its use pending trial. A mandatory order had been made for the disclosure of a list of contacts made, and the claimant complained . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.177438
‘what the appeal court should do when fresh evidence is adduced after a trial which allegedly shows that the judgment below was obtained by fraud, the conduct relied upon being that of a witness and of a party to the action which took place after the events in issue, and is unrelated to the issues which were before the court. In particular, it raises the following questions: whether the fresh evidence (permission to rely upon it having already been granted) is capable of establishing that the Respondents misled the judge at trial by asserting that a letter of revocation in relation to a will had been duly attested; if so, whether the question of whether the judge was misled (the fraud issue) should be referred to the lower court to be determined or should be the subject of a separate action; and, if it is determined that the lower court was misled by fraud, whether a previous will should be admitted to probate on the basis of the original judge’s obiter dicta.’
Lady Justice Asplin
[2021] EWCA Civ 240
England and Wales
Updated: 01 September 2022; Ref: scu.658877
Applications to consolidate and strike out.
Saffman HHJ
[2019] EWHC 2761 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.642651
Getting pleadings in order.
Peter Knox QC (sitting as Deputy Judge of the High Court)
[2019] EWHC 2644 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.642646
The claimant appealed from a refusal to continue an extended civil restraint order against the respondent.
[2019] EWCA Civ 1675
England and Wales
Updated: 31 August 2022; Ref: scu.642684
Consideration of the making of an extended civil restraint order – claimant not making appearance for request despite invite.
Morgan J
[2019] EWHC 2752 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.642641
Directions after refusal of strike out claim.
Treacy DJ
[2019] EWHC 2413 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.641410