Category: Litigation Practice

ACCG and Another v MN: CA 25 Jun 2014

Two renewed applications for permission to appeal from a judgment of the CoP regarding provision of support for home visits for a young adult with severe health difficulties and the scope of the power of the CoP to make provisions.

Judges:

Floyd LJ

Citations:

[2014] EWCA Civ 1176

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At CoP – ACCG and Another v MN and Others CoP 20-Nov-2013
Application for order under the 2005 Act restricting contact between the young adult child with disabilities and his family. Eleanor King J described his condition saying he had: ‘severe learning and physical disabilities together with autism and an . .

Cited by:

Leave – Re MN (Adult) CA 7-May-2015
The parties disputed the care of MN, a young adult without capacity.
Held: Munby P gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to . .
Leave to Appeal CA – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 11 August 2022; Ref: scu.547016

Parkinson Engineering Services Plc v Swan and Another: CA 21 Dec 2009

The court considered the scope of the court’s power to permit an amendment as regards parties outside a limitation period. The amendment in this instance was to substitute one claimant in place of another, namely the liquidator of a company instead of the company itself.
Held: The court said of the new rule that: ‘The text is not quite the same as that of the section, but the rule must be construed as being no wider than is permitted by the section. The effect, on the facts of this case, is that paragraph (3)(b) has to be satisfied, it being shown ‘that the claim cannot properly be carried on by or against the original party’ without the substitution.’

Judges:

Sedley LJ, Lloyd LJ, Sullivan LJ

Citations:

[2009] EWCA Civ 1366, [2010] PNLR 17, [2010] BPIR 437, [2010] Bus LR 857

Links:

Bailii

Statutes:

Civil Procedures Rules 19.5

Jurisdiction:

England and Wales

Citing:

Cited – Goldfarb (Liquidator of Eurocruit Europe Ltd) v Poppleton ChD 21-Jun-2007
The court was asked whether proceedings under section 212 brought by the liquidator against a former director of the company were barred by limitation, having been brought just within 6 years after the resolution for creditors’ voluntary . .

Cited by:

Cited – Irwin and Another v Lynch and Another CA 6-Oct-2010
The court considered an appeal against an order allowing an amendment outside the limitation period which would . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 11 August 2022; Ref: scu.392512

JSC BTA Bank v Ablyazov and Others (Rev 1): ComC 11 Dec 2009

Applications to correct suggested error in earlier order for stay.

Judges:

Teare J

Citations:

[2009] EWHC 3267 (Comm), [2010] 1 All ER (Comm) 1040, [2009] 2 CLC 967

Links:

Bailii

Citing:

See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
Appeal against disclosure orders made in support of freezing order. . .
See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
The court considered a Defendant’s appeal asking whether section 13 of the 2006 Act removed the privilege against self-incrimination in respect of an offence under section 328 of the 2002 Act. The defendant contended that were it to comply with the . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 12-Nov-2009
The claimant sought continuation of a freezing order in a claim brought against senior officers of the company. . .

Cited by:

See Also – JSC BTA Bank v Ablyazov and Others ComC 28-Jan-2010
The claimant sought a order that information released to it under court order could be used for additional purposes beyond those allowed. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 17-Mar-2010
Application by Claimant to set aside an order obtained ex parte so as to ensure that the hearing of an application issued by the Claimant for a receiver to be appointed in respect of the First Defendant’s assets be in private, that the public should . .
See Also – JSC BTA Bank v Ablyazov ComC 16-Jul-2010
The former bank in Kazakhstan had been nationalised to prevent its liquidation, and now sought recovery of sums said to have been taken by its former chairman: ‘The Court has to determine three applications. The first is an application by the Bank . .
See Also – JSC BTA Bank v Ablyazov and Others QBD 24-Aug-2010
When considering a strike out application, the judge should consider ‘the effect of making, or not making, the order sought on the overall fairness of the proceedings and the wider interests of justice as reflected in the overriding objective’. . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 24-Aug-2010
Application for an ‘unless’ order debarring the respondents from defending and entitling the claimant to enter judgment unless certain information and documents were provided. . .
See Also – JSC BTA Bank v A CA 19-Oct-2010
The court heard an appeal in private, against the order of Teare J imposing a receivership on the assets of Mr A pending the trial of claims made against him for misappropriations allegedly made by him while he was chairman of the claimant bank in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 August 2022; Ref: scu.384137

Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08: ECJ 19 Nov 2009

ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of legal proceedings Principle of effective judicial protection.

Judges:

Kokott AG

Citations:

C-317/08, [2009] EUECJ C-317/08 – O

Links:

Bailii

Statutes:

Directive 2002/22/EC

Jurisdiction:

European

Cited by:

Opinion – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .
Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 11 August 2022; Ref: scu.384078

Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08: ECJ 19 Nov 2009

ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal proceedings Principle of effective judicial protection.

Judges:

Kokott AG

Citations:

C-318/08, [2009] EUECJ C-318/08 – O

Links:

Bailii

Statutes:

Directive 2002/22/EC

Jurisdiction:

European

Citing:

See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .

Cited by:

Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .
Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 11 August 2022; Ref: scu.384079

Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08: ECJ 19 Nov 2009

ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of legal proceedings Principle of effective judicial protection.

Judges:

Kokott AG

Citations:

C-319/08, [2009] EUECJ C-319/08 – O

Links:

Bailii

Statutes:

Directive 2002/22/EC

Citing:

See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .

Cited by:

See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .
Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 11 August 2022; Ref: scu.384080

London Borough of Southwark v Kofi-Adu: CA 23 Mar 2006

The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. The risk was not whether a reasonable observer would see bias, but that the judge would have descended into the arena in the battle between the parties: ‘The transcript reveals a constant stream of interruptions by the judge throughout the trial, including sometimes lengthy passages of interrogation of the witnesses, both during examination-in-chief and during cross-examination.’ and
‘interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.
It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge’s descent into the arena (to adopt Lord Greene MR’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair. ‘ A retrial was necessary.

Judges:

Lord Justice Jonathan Parker Sir Martin Nourse Lord Justice Laws

Citations:

Times 01-Jun-2006, [2006] EWCA Civ 281

Links:

Bailii

Statutes:

Housing Act 1985 122 Sch 2 Part 1 G1 G2

Jurisdiction:

England and Wales

Citing:

Cited – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Cumming v Danson CA 1942
The court considered what amounted to reasonable alternative accomodation.
Held: it was the judge’s duty to take into account all relevant circumstances as they exist at the date of the hearing. There is a fundamental difference in the Rent . .
Cited – West Kent Housing Association Limited v Davies CA 4-Feb-1998
The court should recognise the seriousness of the case where the Housing Association was doing its best to improve the quality of life for those living on a housing estate, when its efforts included obtaining witnesses as to the tenant’s behaviour . .
Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Jones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
Lists of cited by and citing cases may be incomplete.

Housing, Litigation Practice

Updated: 09 August 2022; Ref: scu.239218

Law v Margarets Insurances Limited: CA 27 Feb 2001

The defendant sought to set aside a judgment entered against it for the cost of repairs to the claimant’s boat engine, saying that they were not the insurers but merely the insurance brokers. Their appeal had been incorrectly prepared and had been dismissed.
Held: Though this was a second level appeal, the judge had erred in having misunderstood the overriding objective so as to achieve a result which manifestly incorrect: Justice demanded that these relatively venial earlier errors should not have been regarded as incurable to the extent of allowing this apparently inappropriate judgment to stand. ‘ Judgment in default was set aside.

Judges:

Simon Brown, Longmore LJJ

Citations:

[2002] EWCA Civ 30

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 09 August 2022; Ref: scu.218006

Newman v Whitbread Plc: CA 26 Feb 2001

The claimant sought damages after falling down stairs at work. She said that the stairway did not comply with the British Standards in breach of the Regulations. The employer responded that the non-compliance was merely techical, and could not have affected the accident. The employer appealed saying that the judge had taken a point unargued in the pleadings.
Held: The court applied the test in Waghorn to ask whether the defendants would have argued their case differently if the point had been pleaded. They would have done so. It was now not proper to call for a re-trial. The appeal succeeded.

Citations:

[2001] EWCA Civ 326

Links:

Bailii

Statutes:

Workplace (Health, Safety and Welfare) Regulations 1992 5(1)

Jurisdiction:

England and Wales

Citing:

Cited – Waghorn v Wimpey (George) and Co 1969
The plaintiff pleaded that he slipped on a bank, but the evidence was that he slipped on a path.
Held: The variation in the case presented from that pleaded was fatal to the case. The court considered such variations: ‘In the present case Mr . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 09 August 2022; Ref: scu.218005

Beecham Group Plc and Another v Norton Healthcare Ltd and Others: ChD 11 Oct 1996

A patent claim could be amended to add a claim for an action for breach of confidence by the defendant. The claim was rightly amended after service abroad to add more heads; UK was the forum conveniens in this action.

Citations:

Times 11-Oct-1996, Gazette 06-Nov-1996

Jurisdiction:

England and Wales

Cited by:

Appeal from – Norton Healthcare Limited v Beecham Group Plc CA 19-Jun-1997
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 09 August 2022; Ref: scu.78314

Tex Services Ltd v Shibani Knitting Co Ltd: PC 10 Nov 2016

(Mauritius) Lord Mance approved, a submission by Counsel for Shibani, as follows, namely ‘the advantage which a trial judge enjoys in relation to matters of fact may be weakened by such a delay and that such delay calls for special care when reviewing the evidence which was before and the findings of fact which were made by the judge. But it is still for an appellant to pinpoint any particular findings of fact which may in the light of that review be open to question by reason of the delay’. In Tex, the case turned upon the construction of a contract and the case could be determined on the evidence and material before the Court without any need to consider a remission, of which neither party contended. In that sense Tex is different from the instant case where the essence of the submission of the Appellant is that the case does require remission.

Judges:

Lord Mance, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2016] UKPC 31

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 08 August 2022; Ref: scu.571239

Newlands v M’Kinlay: SCS 16 Dec 1885

In an action for payment of the balance of an account one of the entries in the account sued upon was a cash advance of pounds 300. The pursuer recovered from the defender, under a diligence against havers, a cash-book kept by him while manager of his father’s business (to which he had succeeded at the date of the action), containing this entry, ’13th July 1874. To Alexander M’Kinlay, per W. H. R., pounds 300.’ The pursuer then referred the constitution of the debt of pounds 300 to the defender’s oath. The defender deponed that the entry in the cash-book was made for the purpose of recording the receipt by him of pounds 300 from Newlands, the pursuer, on that day, and that the original entry had been ‘per W. N.’ over which he had superinduced the letters ‘W. H. R.’ The defender further deponed that the money had been repaid. Held (1) that the debt had not been proved scripto; (2) that the qualification of repayment was intrinsic of the defender’s oath. Defender assoilzied.

Judges:

Lord Trayner, Ordinary

Citations:

[1885] SLR 23 – 228

Links:

Bailii

Jurisdiction:

Scotland

Contract, Litigation Practice

Updated: 08 August 2022; Ref: scu.580403

Reachlocal UK Ltd and Another v Bennett and Others: QBD 3 Jul 2014

Application by the 1st and 3rd Defendants for relief from sanctions. The Claimants claim damages and an injunction for libel, slander, malicious falsehood, breach of confidence, breach of contract and conspiracy.

Judges:

Nicol J

Citations:

[2014] EWHC 2161 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Torts – Other, Defamation

Updated: 07 August 2022; Ref: scu.533818

Apex Global Management Ltd and Another v FI Call Ltd and Others: ChD 29 Nov 2013

The court dealt with several case management applications including for relief from sanctions. Prince Abdulaziz claimed that he should not be required to provide a personal statement because as a member fo the Saudi Royal Family there was a convention against signing statements as any part of litigation. His solicitor had provided a statement instead.
Held: Mann J thought that the Prince was raising points which had already been decided, and was concerned that, if the Prince’s proposal was adopted, there would not be ‘a level playing field’ so far as the other litigants were concerned. Mann J was also sceptical about the existence of the alleged protocol, which he described as having ’emerged in a piecemeal and relatively casual way for something which is as central as it is now said to be’. He also described it as ‘a matter of collective choice’ for members of the Saudi Royal Family, to which an English court should not ‘defer’

Judges:

Mann J

Citations:

[2013] EWHC 3752 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Prince Abdulaziz v Apex Global Management Ltd and Another SC 26-Nov-2014
The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 August 2022; Ref: scu.525137

Aspen Insurance UK Ltd v Adana Construction Ltd: ComC 20 Jun 2013

Claim by insurers for a declaration of non liability to which the insured responds seeking declarations that it is covered by the policy and entitled to have its associated defence costs paid.

Citations:

[2013] EWHC 1568 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appral from – Aspen Insurance UK Ltd v Adana Construction Ltd CA 5-Mar-2015
. .
See Also – Aspen Insurance UK Ltd v Adana Construction Ltd (Costs) CA 5-Mar-2015
Post judgment orders for costs and otherwise . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 07 August 2022; Ref: scu.510952

Dadourian Group International Inc and others v Simms and others: CA 13 Mar 2009

Arden LJ summarised the approach to be taken by a court faced with an allegation of fraud: ‘Their Lordships affirmed the decision in Re H and provided an explanation of what Lord Nicholls’ judgment meant. Baroness Hale (with whom the other Law Lords agreed) explained that nothing in Re H suggests that a different standard of proof is to be applied in circumstances where the alleged conduct is particularly serious or unusual. There is one standard of proof and that is the simple balance of probabilities. The fact that the alleged conduct is particularly serious or unusual does not displace or change this fundamental principle. Baroness Hale stated that the inherent probabilities are simply one factor to be taken into account, where relevant, in deciding where the truth lies. However generally ‘there is no logical or necessary connection between seriousness and probability’. Therefore arguments that Re H had introduced a principle that where a serious allegation is in issue the standard of proof required is higher were incorrect.’

Judges:

Arden LJ, Hallett LJ, Blackburne J

Citations:

[2009] EWCA Civ 169, [2009] 1 Lloyds Rep 601

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Dadourian Group International Inc and others v Simms and others ChD 25-Jul-2008
Applications arising from disclosure of documents . .

Cited by:

Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 August 2022; Ref: scu.317975

In Re Abrahams: PC 14 Jun 1864

The Order in Council of the 12th of April, 1851, restricts the right of appeal to the Queen in Council, to matters where the property, or civil rights, amount to and300.
Application for special leave to appeal from an Order of the Supreme Court of Jamaica, refusing to quash a fiat, or certificate of insolvency, made under the Jamaica Act, 1lth Vict, c. 25, refused, as the question at issue, namely, the validity of the fiat of insolvency, was not an appealable grievance within the Order in Council.

Citations:

[1864] EngR 578, (1864) 2 Moo PC NS 241, (1864) 15 ER 892

Links:

Commonlii

Jurisdiction:

Commonwealth

Litigation Practice, Commonwealth

Updated: 07 August 2022; Ref: scu.282292

Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court: CA 3 Apr 2012

The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil Procedure Rules, wider principles still applied. The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied. In the absence of good reason otherwise, documents used but not read out should be made available. The reasons put forward were insufficient to displace the presumption in favour. The applicant had good and proper reasons for wanting them.
It was ‘quite wrong to infer from the exclusion’ by section 32 of court documents from the FOIA that ‘Parliament intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be appropriate under the open justice principle.’
Lord Justice Toulson said: ‘In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals second circuit and the Constitutional Court of South Africa I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds for opposition need to be in order to outweigh the merits of the application. The Court has to carry out a proportionality exercise which will be fact specific. Central to the Court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose, and conversely any risk of harm which access to the documents may cause to the legitimate interests of others.’

Judges:

Lord Neuberger MR, Hooper, Toulson LJJ

Citations:

[2012] 3 All ER 551, [2012] 3 WLR 1343, [2012] EWCA Civ 420, [2012] WLR(D) 110, [2012] CP Rep 30, [2012] EMLR 22, [2013] QB 618

Links:

Bailii, WLRD

Statutes:

Criminal Procedure Rules 2011 5.7 5.8, Freedom of Information Act 2000 32

Jurisdiction:

England and Wales

Citing:

Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Waterfield QBD 1975
The defendant was convicted of importing pornographic films and magazines. One ground of appeal was that the proceedings were a nullity because the press and public had been excluded from the court room during the showing of the films.
Held: . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Broadcasting Corporation of New Zealand v Attorney General 1982
(Court of Appeal of New Zealand) Woodhouse P said: ‘the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Regina v Crook 1991
A journalist appealed against orders excluding the press and public while the judge considered where the jury should sit, and again as to the behaviour of a jury member.
Held: There may be circumstances where it was appropriate to distinguish . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Howell and Others, Regina v CACD 28-Feb-2003
The defendants appealed against convictions for conspiracy to pervert the course of justice. They had been police officers.
An application was made for the disclosure of the skeleton arguments read by the court, Judge LJ said: ‘Subject to . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – Atkinson and Crook and The Independent v United Kingdom ECHR 3-Dec-1990
(European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists.
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
Cited – Grupo Interpres Sa v Spain ECHR 7-Apr-1997
(Commission) The applicant sold information about people’s assets to third parties. He complained that the refusal of the Spanish courts to allow him access to the courts’ archives in order to obtain such information violated his rights under . .
Cited – Matky v Czech Republic ECHR 10-Jul-2006
(French Text) Members of an environmental group sought access to the original project documents lodged with a government department. They wanted to compare the plans with revised plans which were currently the subject of an environmental assessment. . .
See Also – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .

Cited by:

Cited – Pressdram Ltd v Whyte ChD 30-May-2012
The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
Held: The applicant had provided appropriate . .
See Also – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
Private Hearings are Not in Secret
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. The hearing was listed as in . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
Private Hearings are Not in Secret
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. The hearing was listed as in . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Litigation Practice, Magistrates, Extradition, Human Rights

Leading Case

Updated: 07 August 2022; Ref: scu.452439

Grosvenor Casinos Ltd v National Bank of Abu Dhabi: ComC 14 Nov 2007

Judges:

David Steel J

Citations:

[2007] EWHC 2600 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Grosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 06 August 2022; Ref: scu.261307

Cinpres Gas Injection Limited v Melea Limited: ChD 14 Dec 2005

The court criticised the failure of applicants for an order made not on notice to follow good practice. Applications not on notice should be made only where there was real urgency. The more serious the allegations made the greater was the need to keep proper records and for openness. An applying party should normally provide a witness statement. It was not proper to rely upon the courts’ recording system, and a duty fell on both solicitors and counsel attending to keep a full note of what transpired to supply as neceesary to the other party.

Judges:

Pumfrey J

Citations:

Times 21-Dec-2005, [2005] EWHC 3180 (Pat)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Intellectual Property

Updated: 06 August 2022; Ref: scu.236668

Hadmor Productions Ltd v Hamilton: HL 1982

The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon an appeal from the judge’s grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordship’s House, is not to exercise an independent discretion of its own. It must defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge’s exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it.’ and ‘The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, if any, the facts disclosed by it invalidate the reasons given by the judge for his decision.’

and ‘Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given the opportunity of stating what his answer to it is.’

Judges:

Lord Diplock

Citations:

[1983] 1 AC 191, [1982] ICR 114

Jurisdiction:

England and Wales

Citing:

Approved – British Broadcasting Corporation v Hearn CA 1977
Union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in South Africa. The refusal followed a union . .

Cited by:

Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 06 August 2022; Ref: scu.182421

Goose v Wilson Sandford and Co and Mainon: CA 13 Feb 1998

A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and finalisation of findings of fact in these terms: ‘Because of the delay in giving judgment, it has been incumbent upon us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal, unless it can be shown that he failed to use, or misused this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from Counsel. But the very fact of the huge delay in itself weakened the judge’s advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received, with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way.’

Judges:

Peter Gibson, Brooke, Mummery LJJ

Citations:

Times 19-Feb-1998, Gazette 25-Mar-1998, [1998] EWCA Civ 245, [1998] TLR 85

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Goose v Wilson Sandford and Co (A Firm) and Another ChD 10-May-1994
A court can turn down, and refuse to hear or accept claims, which were similar to a previous, statute barred, deceit claim. . .

Cited by:

Cited – Cobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
Cited – Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
See Also – Rex Goose v Wilson Sandford and Co (a Firm) (No 2) CA 14-Mar-2000
. .
See Also – Gardiner Fire Ltd v Jones Thd Manufacturing Ltd (Third Party) CA 20-Oct-1998
A delay of 22 months between a hearing and the handing down of a judgment is quite intolerable. Judges creating such delays will in future be liable to such steps as could properly be taken by those in authority over them. Mechanisms had been put in . .
Cited – Wilson v Dunbar Bank Plc SCS 26-Mar-2008
. .
Cited – Bond v Dunster Properties Ltd and Others CA 21-Apr-2011
The defendant appealed against the judge’s findings as to fact delivered some 22 months after the hearing.
Held: The appeal failed. Though such a delay must require the court carefully to investigate the judgment, it did not of itself . .
Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.143723

Ward v Aitken and Others; In re Oasis Merchandising Services Ltd: CA 9 Oct 1996

The Court was asked as to the validity of the assignment by a liquidator to a litigation funder of the benefit of a wrongful trading claim against the directors of the company under section 214 of the IA 1986. The directors sought to stay the claim on the basis that the liquidator had no power to assign the statutory cause of action, and that the agreement was therefore champertous. A liquidator’s agreement with a third party to share damages in return for supporting an action against a company’s directors was champertous.
Looking at the statutory powers of a liquidator under the paragraph 6 of Schedule 4 to the 1986 Act to sell the company’s property: ‘the provisions relating to company insolvency do not define the property of a company which liquidators can sell (save to the extent, already noted, that ‘property’ is given an extended meaning in section 436). By section 143 the liquidator’s functions in a compulsory winding up are to secure that the assets of the company are got in, realised and distributed. He is required to take into his custody or under his control ‘all the property and things in action’ to which the company is or appears to be entitled (section 144(1)), but in addition and quite separately from that duty the liquidator is given certain powers to apply to the court, and if the application is successful there will be an increase in the distributable assets, even though the company as such was never entitled to make that application. The statutory provisions do not expressly state that such after-acquired assets are ‘the property of the company.’ . . [we] consider whether a distinction should not be drawn between assets which are the property of the company at the time of the commencement of the liquidation (and the property representing the same), including rights of action which arose and might have been pursued by the company itself prior to the liquidation, and assets which only arise after the liquidation of the company and are recoverable only by the liquidator pursuant to statutory powers conferred on him. The scheme of the Act of 1986 suggests that only the former falls within ‘the property of the company’ which an administrator or administrative receiver or liquidator can sell.’
The Court summarised that distinction: ‘between the property of the company at the commencement of the liquidation (and property representing the same) and property which is subsequently acquired by the liquidator through the exercise of rights conferred on him alone by statute and which is to be held on the statutory trust for distribution by the liquidator.’

Judges:

Peter Gibson LJ

Citations:

Times 14-Oct-1996, [1998] Ch 170, [1996] EWCA Civ 689, [1997] 1 All ER 1009, [1997] 1 BCLC 689, [1997] 2 WLR 764, [1997] BCC 282

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – Ward v Aitken and Others; In re Oasis Merchandising Services Ltd ChD 19-Jun-1995
An agreement to share the proceeds of litigation against Directors was champertous. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.140556

Khela v Pone and Norwest Holst Limited: CA 21 May 1997

The claimant sught to re-instate his personal injury action. It had been struck out under the automatic directions.
Held: The claimant had not satsified the requirement to provide a sufficient reason to make his delay excusable.

Citations:

[1997] EWCA Civ 1742

Jurisdiction:

England and Wales

Citing:

Cited – Rastin v British Steel Plc, Todd v Evans, Adams v Geest Plc CA 18-Feb-1994
An action which had been automatically struck out, may be re-instated if there had been good cause for the delay. ‘The proper approach to the exercise of any judicial discretion must be governed by the legal context in which the discretion arises.’ . .
Cited – Bannister v SGB Plc and others and 19 Other Appeals CA 25-Apr-1997
Detailed guidance was given as to several different problems of interpretation of Order 17 r 11, dealing with automatic directions. Definitive guidelines were given for the interpretation of automatic directions and strike out provisions in the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 06 August 2022; Ref: scu.142138

Walpole v Partridge and Wilson (A Firm): CA 8 Jul 1993

The plaintiff, who had been convicted before the magistrates, sued the solicitors who had acted for him in connection with a proposed appeal to the Crown Court for failure to lodge such an appeal. The solicitors applied to strike out the action, citing Hunter.
Held: It was not an abuse of process to allege negligence against solicitors for not arguing a point. The collateral attack rules were explained and an exception provided for. Ralph Gibson LJ: ‘to permit a claim to be pursued for causing a plaintiff to lose the power to exercise a right of appeal is not to permit relitigation of the same issue ‘

Judges:

Ralph Gibson LJ

Citations:

Independent 23-Sep-1993, Times 08-Jul-1993, [1994] QB 106

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.90265

Re Bank of Credit and Commerce International Sa: ChD 3 Jan 1994

Cross examination on an affidavit requested despite there being no extraneous evidence.

Citations:

Ind Summary 03-Jan-1994

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Bellmex International Ltd ChD 23-Mar-2000
The liquidator of a company in a creditors voluntary liquidation, and which had been importing cigarettes received a proof of debt from a company in Zimbabwe. The liquidator suspected that the proof relied upon a false declaration in denying that . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.85727

Vernon v Bosley: QBD 5 Aug 1994

The Judge may impose a schedule for the examination of witnesses if there is a severe overrun of the case at the hearing.

Citations:

Times 05-Aug-1994

Jurisdiction:

England and Wales

Citing:

See Also – Vernon v Bosley (1) CA 8-Apr-1994
Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The . .
See Also – Vernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .

Cited by:

See Also – Vernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
See Also – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.90154

Goose v Wilson Sandford and Co (A Firm) and Another: ChD 10 May 1994

A court can turn down, and refuse to hear or accept claims, which were similar to a previous, statute barred, deceit claim.

Citations:

Times 10-May-1994

Statutes:

Limitation Act 1980 2

Jurisdiction:

England and Wales

Cited by:

Appeal from – Goose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.80929

Vandersteen (Executor of the Estate of Mcguinness, Dec’d) v Agius and Another: CA 29 Oct 1997

An appeal from a district judge on a taxation was by way of re-hearing; A County Court Judge was not restricted to following the discretion as exercised on the first hearing.

Citations:

Gazette 29-Oct-1997, Times 14-Nov-1997

Statutes:

Rules of the Supreme Court Order 62 r 28(5), County Court Rules 1981 Order 13 1(10)

Jurisdiction:

England and Wales

Costs, Litigation Practice

Updated: 06 August 2022; Ref: scu.90124

JSC BTA Bank v Ablyazov and Others: ComC 15 May 2012

Their client had been found in contempt and sentenced to imprisonment. The solicitors were now subject to an application for disclosure of further details of how they contacted their client. The court considered the jurisdiction of the court to make such an order and how it might affect legal privilege. The respondent solicitors were Addleshaw Goddard LLP and the claimant wished to obtain information regarding their conference call facility and email facility so as to be able to track down the first defendant’s location. There was evidence before the Judge that Addleshaw Goddard and the relevant defendant had set up the conference call facility and email facility expressly for the purpose of giving and receiving confidential and privileged legal advice.
Held: Having carefully considered the earlier authorities, the court came to the conclusion on the facts as laid out that the telephone number and email address of the relevant client were protected from disclosure by legal professional privilege.
Teare J said: ‘However, it is impossible to predict all the circumstances in which an order of the type sought in the present case may arise. For that reason it is, I think, permissible and preferable to hold that the court has jurisdiction to make an order of the type sought pursuant to section 37 of the Supreme Court Act 1981 but that in deciding whether the order is ‘just and convenient’ in any particular case, or whether the court should, in the exercise of its discretion, make the order sought the court must necessarily take into account both the absolute nature of the right to confidential and privileged legal advice and the prior right to have access to such advice. It may be that taking such matters into account will necessarily mean that the order sought will be refused where it requires disclosure of information protected by legal professional privilege or where its effect is to deny a person access to legal advice. But I do not consider that that renders the court’s discretion illusory. Rather, it shows that the court must carefully consider all the circumstances of the case in order to decide whether the order is just and convenient and if so whether the order should be made.’

Judges:

Teare J

Citations:

[2012] EWHC 1252 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) QBD 10-Jul-2014
The claimant sought an order for the disclosure by his solicitor of the identity of the author of an internet blog publishing critical material which, the claimant said, was its confidential information. The defendant’s solicitor had failed to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court, Legal Professions

Updated: 06 August 2022; Ref: scu.457700

Trouw UK v Mitsui UK: ComC 2006

Judges:

Tomlinson J

Citations:

[2006] EWHC 863 (Comm)

Jurisdiction:

England and Wales

Cited by:

Cited – Kneale v Barclays Bank Plc (T/A Barclaycard) ComC 23-Jul-2010
The bank appealed against an order for pre-action dicslosure and payment of the costs to date of its customers request for copies of the agreement under which it sought payment, and otherwise.
Held: After Carey it was not to be argued . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.424203

Marlton v Tectronix UK Holdings: ChD 10 Feb 2003

The court considered what was to be discovered under Part 31.4.1 of CPR. Pumfrey J expressly approved the commentary in the White Book: ‘A computer database which forms part of the business records for company is, in so far as it contains information capable of being received and converted into readable form, a document for the purposes of CPR 31.4 and is therefore susceptible to disclosure.’

Judges:

Pumfrey J

Citations:

[2003] EWHC 383 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 31.4.1

Jurisdiction:

England and Wales

Cited by:

Cited – Glenn and Co (Essex) Ltd), Regina (on The Application of) v HM Revenue and Customs Admn 18-Jun-2010
The company objected to the search of its offices and removal by the defendant of its computers, the officers having entered without any warrant purporting to use powers under the 1989 Act.
Held: The request for judicial review failed. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 06 August 2022; Ref: scu.263714

Ezekiel v Orakpo: ChD 4 Nov 1994

The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not been mentioned.
Held: A charging order impliedly includes a charge to secure the costs and also interest for the six years up to the start of the action. Carnwath J said: ‘So far as concerns the costs of enforcing the security, it is well established that:-
‘A mortgagee is allowed to re-imburse himself out of the mortgaged property for all costs charges and expenses reasonably and properly incurred in enforcing or preserving his security…’ although that principle is based on an implied term in the mortgage contract (see Gomba Holdings v Minories Finance 1993 CH 171 at p 184) the same principle is in my view applicable (by virtue of section 3(4) of the 1979 Act) to a Charging Order.’

Judges:

Carnwath J

Citations:

Independent 23-Nov-1994, Times 08-Nov-1994

Statutes:

Charging Orders Act 1979 3(5)

Jurisdiction:

England and Wales

Citing:

See Also – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:

Appeal from – Ezekiel v Orakpo CA 16-Sep-1996
A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 August 2022; Ref: scu.80433

Ex Parte Applications and Consent Orders: Practice Direction No 1 /1993: ChD 24 Mar 1993

Ex parte applications will in future only be dealt with by the masters (except in emergency) who have had the case allocated to them. If the master is not available on the day, it should be adjourned if possible to the day he is next available. Consent order minutes should be left in Room TM709 and not with the master.

Citations:

Gazette 24-Mar-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 06 August 2022; Ref: scu.80413

JSC BTA Bank v Ablyazov and Others: ComC 16 Mar 2012

‘application by the claimant bank, JSC BTA Bank, for an order for interim payment against the fourth defendant, Chrysopa Holding BV, in the amount of US$65 million. The application is made on the basis that the court can be satisfied that Chrysopa has admitted liability to pay such a sum of money to the bank, pursuant to CPR 25.7(1)(a), and/or that, if the claim goes to trial, the bank will obtain judgment for a substantial amount of money against Chrysopa, pursuant to CPR 25.7(1)(c).’

Judges:

Hamblen J

Citations:

[2012] EWHC 783 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 06 August 2022; Ref: scu.452393

JSC BTA Bank v Ablyazov: ComC 8 Mar 2012

The claimant bank had in place substantial receivership orders against the first defendant. It now sought a variation on those orders on satisfying the court that the defendant or his agents had taken steps to hide assets.

Citations:

[2012] EWHC 648 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 06 August 2022; Ref: scu.452394

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.

Judges:

Paul Matthews HHJ

Citations:

[2018] EWHC 3158 (Ch)

Links:

Bailii

Statutes:

Competition Act 1998 28

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .
See Also – 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, . .
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 . .

Cited by:

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. . .
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. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Litigation Practice

Updated: 05 August 2022; Ref: scu.636739

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, the court said that the Authority could only use such material by way of a generalised summary. The Authority appealed.
Held: The appeal succeeded. It had been correct when making the ex parte application to use material which might later be subject to a PII application, without identifying it as such. On an inter partes application as to that warrant, application could made for a PII certificate, but the court should not get involved in the use of confidentiality rings.

Judges:

King, Simon LJJ, Dame Elizabeth Gloster

Citations:

[2018] EWCA Civ 1881, [2018] WLR(D) 516, [2018] Bus LR 2452

Links:

Bailii, wLRD

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
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 . .

Cited by:

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. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Litigation Practice

Updated: 05 August 2022; Ref: scu.621036

Rahmatullah (No 2) v Ministry of Defence and Another: SC 17 Jan 2017

‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and Afghanistan.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes

Citations:

[2017] UKSC 1, [2017] 3 All ER 179, [2017] WLR(D) 49, [2017] AC 649, [2017] 2 WLR 287, UKSC 2015/0002

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary

Statutes:

Crown Proceedings Act 1947 2(1), Human Rights Act 1998 Sch 1, Pt I, art 6

Jurisdiction:

England and Wales

Citing:

Appeal from – Mohammed and Others v Secretary of State for Defence CA 30-Jul-2015
Appeal arising from the determination of preliminary issues in relation to claims arising out of the detention of the claimant by Her Majesty’s armed forces in 2010 in Afghanistan. They were acting as part of the International Security Assistance . .
See Also – Al-Waheed v Ministry of Defence SC 17-Jan-2017
‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. . .

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 05 August 2022; Ref: scu.573214

Perpetual Trustee Company Ltd v BNY Corporate Trustee Services Ltd and Another: ChD 17 Nov 2009

Judges:

Henderson J

Citations:

[2009] EWHC 2953 (Ch), [2010] BPIR 228, [2010] 2 BCLC 237

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Perpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others CA 6-Nov-2009
The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.380334

Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60: Admn 19 Nov 2009

The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be published.

Judges:

Thomas LJ, Lloyd Jones LJ

Citations:

[2009] EWHC 2973 (Admin)

Links:

Bailii

Citing:

See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .

Cited by:

See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.380332

The Ministry of Justice (Sued As The Home Office) v Scott: CA 20 Nov 2009

The claimant had been falsely accused of assault by five prison officers. The defendant appealed against a refusal to strike out a claim of of malicious prosecution.
Held: Proceedings for malicious prosecution cannot be regarded as being confined to cases in which the facts are ‘within the knowledge only of the complainant.’ Such claims are generally unsuitable for summary disposition. The appeal failed.

Judges:

Pill LJ

Citations:

[2009] EWCA Civ 1215

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Commonwealth Life Assurance Society Limited v Brain 1935
(High Court of Australia) Dixon J said: ‘that no responsibility was incurred by one who confines himself to bringing before some proper authority information which he does not believe, even although in the hope that a prosecution will be instituted, . .
Mentioned – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Commercial Union Assurance Co. of NZ Ltd v Lamont 1989
(Court of Appeal of New Zealand) Richardson J said: ‘a defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution . . that requires close analysis of the . .
Cited – Martin v Watson HL 13-Jul-1995
The plaintiff had been falsely reported to the police by the defendant, a neighbour, for indecent exposure whilst standing on a ladder in his garden. He had been arrested and charged, but at a hearing before the Magistrates’ Court, the Crown . .

Cited by:

Cited – Commissioner of Police of The Metropolis v Copeland CA 22-Jul-2014
The defendant appealed against the award of damages for assault, false imprisonment and malicious prosection, saying that the question posed for the jury were misdirections, and that the jury’s decision was perverse. The claimant was attending the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 05 August 2022; Ref: scu.380343

JSC BTA Bank v Ablyazov and Others: ComC 12 Nov 2009

The claimant sought continuation of a freezing order in a claim brought against senior officers of the company.

Judges:

Teare J

Citations:

[2009] EWHC 2840 (Comm)

Links:

Bailii

Citing:

See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
Appeal against disclosure orders made in support of freezing order. . .
See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
The court considered a Defendant’s appeal asking whether section 13 of the 2006 Act removed the privilege against self-incrimination in respect of an offence under section 328 of the 2002 Act. The defendant contended that were it to comply with the . .

Cited by:

See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 11-Dec-2009
Applications to correct suggested error in earlier order for stay. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 28-Jan-2010
The claimant sought a order that information released to it under court order could be used for additional purposes beyond those allowed. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 17-Mar-2010
Application by Claimant to set aside an order obtained ex parte so as to ensure that the hearing of an application issued by the Claimant for a receiver to be appointed in respect of the First Defendant’s assets be in private, that the public should . .
See Also – JSC BTA Bank v Ablyazov ComC 16-Jul-2010
The former bank in Kazakhstan had been nationalised to prevent its liquidation, and now sought recovery of sums said to have been taken by its former chairman: ‘The Court has to determine three applications. The first is an application by the Bank . .
See Also – JSC BTA Bank v Ablyazov and Others QBD 24-Aug-2010
When considering a strike out application, the judge should consider ‘the effect of making, or not making, the order sought on the overall fairness of the proceedings and the wider interests of justice as reflected in the overriding objective’. . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 24-Aug-2010
Application for an ‘unless’ order debarring the respondents from defending and entitling the claimant to enter judgment unless certain information and documents were provided. . .
See Also – JSC BTA Bank v A CA 19-Oct-2010
The court heard an appeal in private, against the order of Teare J imposing a receivership on the assets of Mr A pending the trial of claims made against him for misappropriations allegedly made by him while he was chairman of the claimant bank in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.377914

Calyon v Michailaidis and Others: PC 15 Jul 2009

(Gibraltar) The test for applying an abuse of process argument is an exacting one.

Judges:

Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance, Sir Henry Brooke, Sir Robin Auld

Citations:

[2009] UKPC 34

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.377794

Harmer v Armstrong: CA 1934

The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where the trustees refused to sue, joining the other beneficiaries and the trustees as defendants. Lawrence LJ said: ‘The right of a beneficiary in such a case as the present, however, is to enforce the agreement according to its tenor, that is to say in favour of the defendant Armstrong, and not in favour of the plaintiff beneficiaries.’

Judges:

Lawrence LJ

Citations:

[1934] Ch 65

Jurisdiction:

England and Wales

Cited by:

Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Cited – In re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 05 August 2022; Ref: scu.249319

Arab Monetary Fund v Hashim and Others (No 4): CA 9 Sep 1992

A Court had jurisdiction to order the consolidation of actions even before their respective writs had been served. It became a ‘pending’ action under the Order on issue of the originating process.

Citations:

Gazette 09-Sep-1992, [1992] 1 WLR 1176

Statutes:

Rules of the Supreme Court Ord 4 r9(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Arab Monetary Fund v Nahiralulloom and Others ChD 8-Jul-1992
A ‘Pending’ action for consolidation purposes includes a writ not yet served. . .
Distinguished – Dresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA 1992
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .

Cited by:

Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.77848

Cretanor Maritime Co Ltd v Irish Marine Management Ltd: CA 1978

A freezing order is relief in personam and creates no proprietary rights in the assets from time to time subject to it. Buckley LJ said that where an injunction required assets up to a stated value to be kept within the jurisdiction: ‘There must always, in theory at least, be a possibility that the charterers may at some time have assets in excess of that value within the jurisdiction, in which event they would be free to remove from the jurisdiction at their choice any asset representing the excess or part of it.’ A court may also intervene when such an injunction causes real and unwarranted harm either to a party or to a stranger to the suit.

Judges:

Buckley LJ

Citations:

[1978] 1 WLR 966, [1978] 3 All ER 164, (1978) 1 Lloyds Rep 425

Jurisdiction:

England and Wales

Cited by:

Cited – Flightline Ltd v Edwards and Another ChD 2-Aug-2002
Money had been paid into an account in the joint names of the parties’ solicitors in order to purchase the release of the applicants from an asset freezing order. The respondent company was in liquidation. It was argued that the payment of funds . .
Cited – Ernst Kastner v Marc Jason, Davis Sherman, Brigitte Sherman CA 2-Dec-2004
The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 August 2022; Ref: scu.181199

Re Boks and Co v Peters, Rushton and Co Ltd: CA 1919

The alternative procedure for seeking enforcement of an arbitrator’s award is by an action upon the award. The procedure is to be used only in ‘reasonably clear cases’.

Judges:

Scrutton LJ

Citations:

[1919] 1 KB 491

Jurisdiction:

England and Wales

Cited by:

Cited – Carter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica) PC 14-Jun-2004
(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was . .
Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 05 August 2022; Ref: scu.198416

Petroleo Brasilieiro SA v ENE Kos 1 Ltd: CA 30 Oct 2009

The parties disputed the effective date of a payment into court where the cheque lodged was not in pounds sterling.
Held: The rules were silent on the exact point, but the date was the date of receipt in the court funds office of the cheque in accordance with the rules, notwithstanding any difference in clearance times and unless the accountant-general specified a different date.

Judges:

Lord Justice Waller, Lady Justice Arden and Lord Justice Dyson

Citations:

[2009] EWCA Civ 1127, Times 05-Nov-2009

Links:

Bailii

Statutes:

Court Funds Rules 1987 (SI 1987 No 821)

Jurisdiction:

England and Wales

Citing:

Appeal from – ENE Kos v Petroleo Brasileiro SA (Petrobas) ComC 23-Jul-2009
The claimant shipowners withdrew the vessel for non payment, but at the time they gave notice, the vessel was already laden. They now claimed for the further two days taken for unloading.
Held: The claim succeeded. The proper cause of the . .

Cited by:

See Also – ENE 1 Kos Ltd v Petroleo Brasileiro Sa CA 6-Jul-2010
If a shipowner withdraws his vessel from a charterer’s service for non-payment of hire while cargo is on board the vessel and the shipowner requires the charterer to remove the cargo from the vessel, is the shipowner entitled to remuneration outside . .
See Also – Petroleo Brasileiro Sa v Ene Kos 1 Ltd (‘The MT Kos’) SC 2-May-2012
The MT Kos had been chartered by the appellants. The respondents failed to make payments, and notice was given to withdraw the vessel. The contract said that such a notice was without prejudice to any claim. At the time, the vessel was laden. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.377534

JSC BTA Bank v Ablyazov and Others: CA 27 Oct 2009

Appeal against disclosure orders made in support of freezing order.

Judges:

Pill, Sedley, Moses LJJ

Citations:

[2009] EWCA Civ 1125, [2009] WLR(D) 311, [2010] 1 All ER (Comm) 102

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:

See Also – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
The court considered a Defendant’s appeal asking whether section 13 of the 2006 Act removed the privilege against self-incrimination in respect of an offence under section 328 of the 2002 Act. The defendant contended that were it to comply with the . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 12-Nov-2009
The claimant sought continuation of a freezing order in a claim brought against senior officers of the company. . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 11-Dec-2009
Applications to correct suggested error in earlier order for stay. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 28-Jan-2010
The claimant sought a order that information released to it under court order could be used for additional purposes beyond those allowed. . .
See Also – JSC BTA Bank v Ablyazov and Others ComC 17-Mar-2010
Application by Claimant to set aside an order obtained ex parte so as to ensure that the hearing of an application issued by the Claimant for a receiver to be appointed in respect of the First Defendant’s assets be in private, that the public should . .
See Also – JSC BTA Bank v Ablyazov ComC 16-Jul-2010
The former bank in Kazakhstan had been nationalised to prevent its liquidation, and now sought recovery of sums said to have been taken by its former chairman: ‘The Court has to determine three applications. The first is an application by the Bank . .
See Also – JSC BTA Bank v Ablyazov and Others (Rev 1) ComC 24-Aug-2010
Application for an ‘unless’ order debarring the respondents from defending and entitling the claimant to enter judgment unless certain information and documents were provided. . .
See Also – JSC BTA Bank v Ablyazov and Others QBD 24-Aug-2010
When considering a strike out application, the judge should consider ‘the effect of making, or not making, the order sought on the overall fairness of the proceedings and the wider interests of justice as reflected in the overriding objective’. . .
See Also – JSC BTA Bank v A CA 19-Oct-2010
The court heard an appeal in private, against the order of Teare J imposing a receivership on the assets of Mr A pending the trial of claims made against him for misappropriations allegedly made by him while he was chairman of the claimant bank in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.377236

NATL Amusements (UK) Ltd and Others v White City (Shepherds Bush) Ltd Partnership and Another: TCC 16 Oct 2009

Application for transfer of claim from QBD to TCC. Akenhead J considered an application to transfer a claim from the Chancery Division to the Technology and Construction Court. After reviewing the authorities, he said: ‘It is probably unnecessary to enter into a debate as to precisely what the pre-CPR test was for the transfer of proceedings to another division. The test was undoubtedly appropriateness or inappropriateness. All things being equal, as in the Pantheon case, the action would stay where it was. If on balance it was more appropriate that another division or specialist court within another division should deal with the case, it would not be a wrongful exercise of discretion to transfer it. The wording of RSC Ord 4, r 3 undoubtedly gave the court a discretion and it would be difficult to say that that was a wrongful exercise of discretion.
When one comes to the CPR, one needs always to bear in mind the overriding objective. Indeed, the court must give effect to the overriding objective in interpreting any rule: CPR r 1.2. That objective is the just dealing with cases. That involves amongst other things dealing with cases in proportionate ways bearing in mind amongst other things the complexity of the issues and the importance of the case, expedition and fairness. One of the objectives of the drafters of the CPR was to give the courts a greater flexibility than they had previously had.’ and ‘In my view, the court is entitled to have regard to the relative appropriateness of the different divisions or specialist courts within them in considering whether the transfer should be made. Thus, given the increasing familiarity with and even greater competence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before the court upon what issues the bulk of the time, cost and resources involved in trying the case (and certainly the issues to be dealt with first) will be directed towards. Put another way, the court needs to ascertain if possible where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only insignificant difference between the two venues, the discretion will generally be exercised in favour of the status quo to reflect the fact that a claimant is entitled to issue proceedings in whatever division it thinks fit and that either court is sufficiently experienced in addressing the issues. I would add that where it is clear that significantly greater expedition will be achieved in one court rather than another, that would be a material factor to be taken into account; expedition is a factor recognised within the overriding objective.
In essence, in my judgment, the court should take a pragmatic approach to determine the most appropriate venue, taking into account the experience and expertise generally of judges therein, at any time and cost saving to be achieved in one venue rather than the other. It is not the case that the party seeking transfer must establish that it would be inappropriate for the case to remain in the division in which it was issued. However, if it were to establish that factor, that would be a very strong ground in favour of transfer.’

Judges:

Akenhead J

Citations:

[2009] EWHC 2524 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Appleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
Cited – Mezvinsky and Another v Associated Newspapers Ltd ChD 25-May-2018
Choice of Division and Business Lists
Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.376269

Sampla and Others v Rushmoor Borough Council and Another: TCC 22 Oct 2008

The rejection of a Part 36 offer does not render it incapable of later acceptance.

Judges:

Coulson J

Citations:

[2008] EWHC 2616 (TCC)

Links:

Bailii

Statutes:

Civil procedure Rules Part 36

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbon v Manchester City Council, L G Blower Specialist Bricklayer Ltd, Reeves and another CA 25-Jun-2010
A payment in had been made, and a counter offer made by the claimant. The original offer was increased but rejected. The counter-offer was not withdrawn, and was then accepted by the defendant. On receipt of the acceptance, the claimant purported to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.376270

Baker, Regina (On the Application of) v Hossack: Admn 10 Sep 2009

The solicitor faced professional misconduct disciplinary proceedings. She sought witness summses for the applicant, a solicitor and officer of a local authority taking part in the action which was the origin of the complaint. They stated that they had no relevant knowledge and that the summonses were not issued in good faith.
Held: The purpose of the disciplinary proceedings were to determine the propriety and standards of the solicitor’s practice. The motives of the witness summonses were as to the motives for making the complaint. The witnesses should not be required to give evidence and the summonses were set aside.

Judges:

Silber J

Citations:

[2009] EWHC 2463 (Admin)

Links:

Bailii

Litigation Practice, Legal Professions

Updated: 04 August 2022; Ref: scu.376214

Muscat v Health Professions Council: CA 21 Oct 2009

A radiographer had asked the court to reconsider its verdict in a disciplinary action. He was said to have caused two female patients (on different occasions) to remove their clothing for the purposes of carrying out a scan, when it was not required. He denied the incidents, accusing the two patients of lying. He also contended that their recollections were unreliable because of the effects on them of analgesia. Shortly before the hearing before Silber J, the Appellant sought to introduce new evidence, which included a report from a pharmacologist, who opined as to the probable or possible effects on the complainants of the drugs which they had been given shortly before the incidents in question.
Held: The appeal failed.
As to the admission of new evidence, Smith LJ said that in such a case: ‘if one took the view that this was ordinary litigation, there would be an overwhelming case against the admission of this evidence because there was absolutely no excuse for the failure to obtain the evidence for the hearing and, when the evidence was considered, it was not of great significance. However, Mr Edis submitted that this was not ordinary litigation. There was a real public interest in the outcome of the proceedings. It was important from the public perspective, that the correct decision was reached. It is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register.
I would accept that that is a factor to be taken into account and, in so far as the judge did not mention it, his decision is, in my view, open to review. However, when weighing up the importance of this factor, it is necessary in my view to consider a factor which I mentioned earlier, namely the Committee’s power to review its own decision in relation to a strike off order if new evidence becomes available. This was not an issue which was raised before the judge. It was raised by this Court at the outset of the hearing, as it seemed to us that, if there was a power to review, that was the course which the Appellant should take to secure the admission of fresh evidence. However, as Ms Richards pointed out, the right of appeal co-exists with the right to seek a review and the Appellant had originally taken a number of points on the appeal which would not have been appropriate on review. Accordingly, given the range of issues which the Appellant had raised, she did not suggest that review rather than appeal would have been the appropriate course. However, now that the issue was narrowed to the admission of fresh evidence, she invited us to determine the appeal bearing in mind that there was an alternative course for the Appellant to take (review), even at this late stage.’

Judges:

Smith, Longmore, Maurice Kay LJJ

Citations:

[2009] EWCA Civ 1090

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Litigation Practice

Updated: 04 August 2022; Ref: scu.376232

Forcelux Ltd v Binnie: CA 21 Oct 2009

Forcelux and Mr Binnie were the landlord and tenant of a flat in Lincoln. Under the lease, the tenant was obliged to pay ground rent and other charges. The lease contained a forfeiture provision in the event of non-payment of rent or charges. Mr Binnie fell into arrears and Forcelux obtained a default judgment against him. No payment was made following the judgment and so Forcelux served a notice on Mr Binnie under section 146 of the Law of Property Act 1925 and section 81 of the Housing Act 1996. There was no response to that notice and so Forcelux commenced proceedings for possession. By that time Forcelux had received no payment from Mr Binnie for over 2 years and had heard nothing from him for 12 months. The claim form gave an address for Mr Binnie as required by Rule 6.6 (2); it was the address of the flat. When the hearing date was fixed, the court attempted to serve the proceeding by post but the envelope was returned ‘Gone Away’. This was because, for some time passed, Mr Binnie had not been living in the flat. He was in fact then living with his girlfriend in another flat in the same building and had not collected any documents relating to the case from the flat.
The landlord appealed against the setting aside of his order for possession. The long residential lease provided for forfeiture for non-payment of ground rent or charges. The possession order was set aside and relief from forfeiture given on terms as to payment of arrears.
Held: Where the court makes a possession order in the absence of the tenant, following forfeiture of a lease for non payment of the ground rent, and the tenant subsequently applies to have the order set aside, the rule which is of relevance is CPR 3.1 (2). This is because, when the tenant does not appear at the hearing, there is no trial.
Warren J said: ‘Where a defendant does not appear at all, the test of the judge is entirely straight forward and routine once he is satisfied that service has been properly effected. He looks at the evidence and having no material which would suggest that the defendant has a case at all, let alone one which is genuinely disputed on grounds which appear to be substantial, he makes an order for possession.
I do not consider that such a process of determination and decision can sensibly be called a trial as a matter of the ordinary use of the word. Nor do I consider that it is being seen as a trial within Rule 39.3; the word is not to be given some special and wider meaning in the context of that Rule. Rather it can be seen more as a summary procedure in the sense of the procedure being carried out rapidly with the omission of most of the steps which in an ordinary case lead to trial it also has a lot in common with a disposal hearing as referred to in the PD Part 26 which I have already described, and which is clearly not a trial either in the ordinary sense of the word or in the context of the CPR’

Judges:

Ward, Jacob, Warren LJJ

Citations:

[2009] EWCA Civ 854, [2010] CP Rep 7

Links:

Bailii

Statutes:

Law of Property Act 1925 146, Housing Act 1996 81, Civil Procedure Rules 39.3 55.5, County Court Act 1984 138

Jurisdiction:

England and Wales

Citing:

Cited – Estate Acquisition and Development Ltd v Wiltshire and Another CA 4-May-2006
The defendants appealed a decision that they had no sufficient reason for not attending court on the day of the trial.
Held: The fact that the defendants had a continuing commercial relationship with the claimants was not enough to justify an . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Regency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .
Cited – McCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .

Cited by:

See Also – Forcelux Ltd v Binnie CA 21-Oct-2009
. .
Cited – Pritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .
Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Litigation Practice

Updated: 04 August 2022; Ref: scu.376208

Cadogan Petroleum Plc and Others v Tolley and Others: ChD 16 Oct 2009

The claimant applied for permission to use at trial a transcript of a cross examination of a defendant at an earlier hearing, using the full transcript but ordering that it was not to be used in any criminal or contempt proceedings.

Judges:

Peter Smith J

Citations:

[2009] EWHC 2527 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 August 2022; Ref: scu.376147

Canada Goose UK Retail Ltd and Another v Persons Unknown and Another: QBD 20 Sep 2019

Where an interim injunction had been obtained against person unknown, service of the claim to be answered was fundamental to the principles of the judicial system. There is an important distinction between ‘a person’s general awareness of the proceedings, as a result of information they are provided, and the important step of being served with documents that makes the person aware that s/he is a party to the proceedings.’ In this instance that meant that the original claim had not been properly served and therefore no extension of the Final Order could, or should, be made.

Judges:

Nicklin J

Citations:

[2019] EWHC 2459 (QB), [2019] WLR(D) 520, [2020] 1 WLR 417, [2020] JPL 387

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Canada Goose UK Retail Ltd and Another v Unknown Persons CA 5-Mar-2020
‘This appeal concerns the way in which, and the extent to which, civil proceedings for injunctive relief against ‘persons unknown’ can be used to restrict public protests.’ . .
Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 04 August 2022; Ref: scu.642135

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

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

Judges:

Bean, Asplin, Nugee LJ j

Citations:

[2021] EWCA Civ 1442, [2021] WLR(D) 518

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 04 August 2022; Ref: scu.668373

Browne v Dunn: HL 1893

Where counsel has with regard to a witness, ‘an intention to impeach the credibility of the story he is telling’, he must give that witness notice of his intention by putting that to him during cross examination, unless such intention was entirely clear from earlier circumstances.
Counsel who proposes to lead evidence of a material fact, must put that fact in cross-examination to any witness who might be expected to be able to confirm or deny the evidence. In order to give the witness the opportunity to confirm or deny it. A witness must be given a proper opportunity to answer a suggestion of dishonesty.
Where a solicitor receives information anticipating receiving instructions to act for a client, but then does not in fact reveive such instructions, nonetheless, those communications are protected against disclosure by legal advice privilege. Lord Herschell said: ‘It seems to me that when communications pass between a solicitor and those who he reasonably believes will desire to retain him, and to whom he makes a communication in relation to that, and who do retain him, the whole of those communications leading up to the retainer and relevant to it, and having that and nothing else in view, are privileged communications, that the whole occasion is throughout privileged. There is no authority, so far as I know, to the contrary, and it seems to me that to lay down any other doctrine would be very gravely contrary to the public interest.’
Lord Bowen said: ‘I myself have no doubt at all, in the absence of authority, that if a solicitor has reason to believe that his services may be required by a possible client who does afterwards retain him, what passes between the solicitor and the client on the subject of the retainer, and relevant to the retainer, is covered by professional privilege,’ and: ‘There is another and more serious point, a point of law, which I desire to keep open so far as my opinion is concerned. I very much doubt whether, when a professional relation is created between a solicitor and client, and communications pass between the solicitor and the client with reference to the prosecution of a third person, or with reference to proceedings being taken against him, the fact that the solicitor is animated by malice in what he says of the third person would render him liable to an action, provided he does not say anything which is outside what is relevant to the communications which he is making as solicitor to his client. I very much doubt whether malice destroys that kind of privilege, unless it is shown that what passed was not germane to the occasion.’
Lord Herschell LC said: ‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’

Judges:

Lord Herschell LC, Lord Bowen

Citations:

[1893] 6 R 67

Jurisdiction:

England and Wales

Cited by:

Cited – More v Weaver CA 11-Jul-1928
The appellant brought the latest of several actions, this time alleging defamation in letters from the respondent to her own solicitors making certain statements about the appellant. Those letters had become public in the course of the earlier . .
Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Natural Justice

Leading Case

Updated: 04 August 2022; Ref: scu.468829

Canada Goose UK Retail Ltd and Another v Unknown Persons: CA 5 Mar 2020

‘This appeal concerns the way in which, and the extent to which, civil proceedings for injunctive relief against ‘persons unknown’ can be used to restrict public protests.’

Judges:

Sir Terence Etherton MR, Lord Justice David Richards and Lord Justice Coulson

Citations:

[2020] EWCA Civ 303, [2020] 1 WLR 2802, [2020] WLR(D) 137

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Canada Goose UK Retail Ltd and Another v Persons Unknown and Another QBD 20-Sep-2019
Where an interim injunction had been obtained against person unknown, service of the claim to be answered was fundamental to the principles of the judicial system. There is an important distinction between ‘a person’s general awareness of the . .
Cited – South Cambridgeshire District Council v Gammell and Others CA 31-Oct-2005
Where proceedings were brought against unnamed persons and interim relief was granted to restrain specified acts, a person became both a defendant and a person to whom the injunction was addressed by doing one of those acts.
As to capturing . .

Cited by:

Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.648566

London Borough of Barking and Dagenham and Another v Persons Unknown and Others: CA 13 Jan 2022

Cases in which local authorities have sought interim and sometimes then final injunctions against unidentified and unknown persons who may in the future set up unauthorised encampments on local authority land. These persons have been collectively described in submissions as ‘newcomers’. The persons concerned fall mainly into three categories, who would describe themselves as Romani Gypsies, Irish Travellers and New Travellers.

Judges:

Sir Geoffrey Vos, Master of the Rolls

Lord Justice Lewison

And

Lady Justice Elisabeth Laing

Citations:

[2022] EWCA Civ 13, [2022] WLR(D) 48, [2022] 2 WLR 946

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – South Cambridgeshire District Council v Gammell and Others CA 31-Oct-2005
Where proceedings were brought against unnamed persons and interim relief was granted to restrain specified acts, a person became both a defendant and a person to whom the injunction was addressed by doing one of those acts.
As to capturing . .

Cited by:

Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 04 August 2022; Ref: scu.671055

In re a Bankruptcy Notice: CA 1934

Judges:

Lord Hanworth MR

Citations:

[1934] Ch 431

Jurisdiction:

England and Wales

Cited by:

Approved – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 August 2022; Ref: scu.216509

Avanesov v Shymkentpivo: ComC 25 Feb 2015

Application by the Defendant to set aside a judgment entered in default of acknowledgement of service and a further judgment on an assessment of damages which together total some US$14.5 million inclusive of interest.

Judges:

Popplewell J

Citations:

[2015] EWHC 394 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 03 August 2022; Ref: scu.543469

Birmingham City Council v Afsar and Others: QBD 18 Jun 2019

The Council sought an interim order restraining a protest outside one of it junior schools against the teaching of certain matters relating to sexual behaviour, sexuality, and gender. The named defendants and, it would appear, a significant proportion of the protestors are of the Muslim faith, advocating what some have described as the ‘conservative values’ of their community.

Judges:

Warby J

Citations:

[2019] EWHC 1560 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Birmingham City Council v Afsar and Others QBD 25-Jun-2019
Reason for grant of injunction to restrain demonstrations outside a school. . .
See Also – Birmingham City Council v Afsar and Others QBD 26-Nov-2019
Claim for injunctions to restrict street protests about a school, and to prohibit online abuse of teachers at that school . .
See Also – Birmingham City Council v Afsar and Others QBD 8-Apr-2020
Post judgment applications raising issues about whether one of the injunctions contained in the Annex to the Final Order should be continued, whether two others should be varied, and whether the Trial Judgment should be amended. . .
Cited – MBR Acres Limited and Others v Free The MBR Beagles and Others QBD 20-Jun-2022
Grant of injunction to restrain animal rights protesters. . .
Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The court does not grant injunctions to parties to litigation to be used as a weapon against those perceived to be opponents. Once Ms McGivern had provided evidence confirmed by a statement . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Education

Updated: 03 August 2022; Ref: scu.638443

O’Connor v Piccott and Another: PC 17 Feb 2010

(Jamaica) The parties agreed for the sale of land. The seller sought specific performance by the buyer. The buyer had said there was a problem of title. The appellant had failed to defend the proceedings, and appealed against judgment in default.
Held: The very long history of events was not properly laid out before the Board. Nevertheless the Board proceeded on the basis that the judgment was entered by default. The appeal court in refusing the appeal had failed to take account of the matters required to support the overriding objective of the court rules, in particular in failing to allow for later contracts entered into. The only way forward was for one court to decide the issues together as between the three interested parties, and the appeal was allowed for this to happen.

Judges:

Lord Saville, Lord Clarke, Sir Jonathan Parker

Citations:

[2010] UKPC 4

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 03 August 2022; Ref: scu.401634