Continuation of interim asset freezing orders, and cross-challenges to those orders alleging material non-disclosures.
Cooke J
[2015] EWHC 714 (Comm)
England and Wales
Updated: 03 August 2022; Ref: scu.544559
Appeal from refusal of application for adjournment of trial
[2012] EWCA Civ 970
England and Wales
Updated: 31 July 2022; Ref: scu.463149
Interrogatories to the defendant asking what grounds he had for prosecuting will, as a rule, be refused.
[1911] 2 KB 543
England and Wales
Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.184693
Ormrod LJ: ‘Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately.’ Such circumstances tend to occur more frequently in family disputes than in other types of litigation: ‘but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days’ notice to the other side . . Circumstances, of course, may arise when prior notice cannot be given to the side; for example, cases where . . a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fairly satisfied that such protection is necessary.’
Ormrod LJ, Stamp LJ and Sir John Pennycuick
[1977] Fam 138
England and Wales
Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Cited – Jones v Jones CA 19-Mar-1993
H appealed against his sentence of six months imprisonment for contempt of court in breaching a non-molestation order.
Held: Whilst Ansah could not be used to establish a principle that imprisonment for contempt should be a last resort only, . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.223625
Subrogation is a remedy, not a cause of action. Subrogation of Customs and Excise to a creditor’s right of proof in the winding up of a supplier was refused as it would have been contrary to the statutory scheme for the administration of VAT.
Slade LJ
[1988] Ch 275
England and Wales
Cited – CTI Group Inc v Transclear Sa Comc 14-Sep-2007
The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.259368
Various defendants were served out of the jurisdiction but with the wrong copies of the writs, receiving a copy addressed to another defendant. One defendant received no writ at all, but only a form of acknowledgment of service.
Held: The court unanimously accepted that O.2. r.1 was to be given wide effect. The majority held that service, the step in the proceedings which had been attempted, was to be regarded as valid in the case of all defendants.
Lloyds LJ accepted that for the defendants served with the wrong copy writs, the court had a discretion: ‘The service was grossly defective. But service, or purported service, it remained.’ However, he would not have exercised that discretion in the claimant’s favour. As to the defendant served only with an acknowledgment of service, this was ‘an omission which is so serious that…[i]t cannot be described as a failure to comply with the requirements of the Rules by reason of something left undone . . The service of the form of acknowledgment cannot make up for the absence of the writ.’
McCowan LJ and Sir John Megaw, Lloyd LJ dissenting
[1990] 2 Lloyds Rep 210
Rules of the Supreme Court 2 r1
England and Wales
Distinguished – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – Phillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.244632
The only possible action to set aside an order made by consent would be an action in the original court for the order to be set aside ‘on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons.’
Lord Justice Wynn
[1971] 2 All ER 1162
England and Wales
Updated: 31 July 2022; Ref: scu.196601
Lord Justice Parker said that the use of the words ‘without prejudice’ prima facie meant that a letter was intended to be a part of negotiation. A letter which purported to initiate some sort of negotiation (‘an opening shot’) is not necessarily excluded from the privilege. Negotiations have to begin somewhere. The protection under the rule ‘attaches to all documents which are marked ‘without prejudice’ and form part of negotiations, whether or not they are themselves offers, unless the privilege is defeated on some other ground.’ Where a letter was marked ‘without prejudice’, ‘This prima facie means that it was intended to be a negotiating document.’
Parker LJ
[1987] 1 All ER 340, [1986] 1 WLR 1271
England and Wales
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Cited – Avonwick Holdings Ltd v Webinvest Ltd and Another ChD 10-Oct-2014
Application by the claimant that certain correspondence between the parties and their solicitors in April-May 2014 should be admissible as evidence, notwithstanding that most of it was headed ‘without prejudice and subject to contract’. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.259700
The parties disputed the effect of a Tomlin order, an order made by the court that stayed the proceedings on the terms of a compromise ‘except for the purpose of carrying the said terms into effect’. The defendant had failed to honour the contract and the judge awarded damages against him.
Held: The defendant’s appel succeeded. Fox LJ: ‘It was not open to the judge to make an award of damages
It seems to me that under the terms of the Tomlin order the only jurisdiction that he had in this action to make an order for the purpose of carrying into effect the terms of the compromise. An award of damages is not carrying the terms into effect. It is granting a remedy for breach of contract. In my view any claim by Mrs Hollingsworth for breach of contract must be pursued in a separate action.’
Fox LJ
Unreported, 10-Dec-87
England and Wales
Cited – Orton v Collins and others ChD 23-Apr-2007
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.251428
Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery
Held: Her appeal was refused. A party cannot appeal against a judgment when he has no complaint about the order in fact made. A party’s statutory right to appeal is governed by section 27 which allows for an appeal from ‘the whole or any part of any judgment or order’, which means the ‘formal judgment or order.’ It is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgmentit is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgment.
Hodson LJ said: ‘This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.’
Sir Raymond Evershed MR, Hodson LJ
[1955] P 336
England and Wales
Cited – Jones and others v Ceredigion County Council CA 28-Jul-2005
The parties had challenged the respondent’s decision not to provide free transport to school. The judge granted certificates allowing leave to apply direct to the House of Lords on two issues, and to the Court of Appeal on one other. The House later . .
Cited – Office of Communications and Another v Floe Telecom Ltd CA 10-Feb-2009
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were . .
Cited – Secretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.230066
The Order 14 procedure was restricted to short arguments disposing of the case. The court had some small latitude only.
Gazette 23-Sep-1992
England and Wales
Updated: 31 July 2022; Ref: scu.78125
The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury.
Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated.
Lord Denning MR said: ‘Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest — and is then charged with libel — then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.’ and ‘the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state’.
Lord Denning MR
[1973] 1 WLR 448
Administration of Justice (Miscellaneous Provisions) Act 1933
England and Wales
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Joyce v Sengupta and Another CA 31-Jul-1992
The defendant published an article accusing the plaintiff of theft. Not having funds to launch a claim in libel, the plaintiff obtained legal aid to claim in malicious falsehood. She now appealed against a strike out of that claim.
Held: A . .
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.184760
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement agreement or not. Once it has been decided that there is an agreement, only the material containing the agreement is held not to be privileged.
Ormrod J said that sometimes letters get headed ‘without privilege’ in the most absurd circumstances, but where a letter is not headed ‘without prejudice’ unnecessarily or meaninglessly the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain.
Danckwerts LJ, Sir Gordon Willmer, Ormrod J
[1969] 1 WLR 1378, [1969] 3 All ER 201
England and Wales
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – L’Oreal Sa and others v eBay International Ag and others ChD 15-Jul-2008
In interlouctory proceedings, Ebay sought disclosure of a Tomlin settlement reached by the claimants with a co-defendant. The claimant resisted, saying that the Tomlin order was confidential.
Held: Master Gragg said: ‘on balance it must be . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.253691
The trial judge had found in favour of the first defendant, a coal company, and held the second defendant, a gas company, wholly to blame for the loss incurred by the plaintiff as the result of an explosion caused by a leakage of gas. The second defendant appealed.
Held: The Court upheld the judge’s decision that the first defendant was wholly to blame.
Goddard LJ however said: ‘It remains only to notice the argument of counsel for the coal company that, as the plaintiff did not appeal against the judgment entered for the coal company, the appeal of the gas company, in so far as it seeks to have them held liable for contribution, is incompetent. We cannot agree. The gas company were entitled at the trial, by reason of the provisions of the Law Reform (Married Women and Tortfeasors) Act, 1935, to show, if they could, that the coal company were liable in whole or in part for the accident so as to obtain the benefit of indemnity or contribution given by the Act. The duty of the court below was to decide on the rights of the parties at the date of the writ. The Court of Appeal must rehear the case and give the judgment which ought to have been given below, and, if the judgment below should have been that both defendants were liable, so that a right of contribution would arise, this court has power to enter judgment accordingly, even though the plaintiff be content with judgment against one defendant.’
Goddard LJ
[1939] 3 All ER 47
Law Reform (Married Women and Tortfeasors) Act 1935
England and Wales
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.222553
The four factors to be taken into account when considering an application to extend the time for leave to appeal are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted.
Lord Donaldson of Lymington MR
[1991] 1 WLR 449
England and Wales
See Also – Norwich and Peterborough Building Society v Stead 1993
It is for the person who has signed a document to show that the transaction which it effects is essentially different from the transaction intended so that the signatory can claim non est factum and say that he did not consent to it. But he also has . .
Cited – London Borough of Bromley v l Morritt CA 20-Jul-1998
The defendant sought an extension of time to apply for leave to appeal. He had been ordered to remove a wall which the claimant said enclosed what was part of the highway, and which the defendant said he had acquired by adverse possession.
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.230019
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of pounds 1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the defendant two documents. One was a lease with the benefit of certain services at a rent of pounds 450 pa. The other was an agreement for services in connection with the flat for a consideration of andpound;750. The plaintiff used these two documents because he planned to defraud the local Assessment Committee by representing that the total rent was andpound;450. The flat had been assessed at pounds 720 gross, andpound;597 net but when the plaintiff submitted just the lease to the Assessment Committee the gross valuation was reduced to pounds 270. However, the valuation authority learned about the other agreement from the tenant and restored the original figures of pounds 720 gross and pounds 597 net. Sometime later, the plaintiff sued for arrears of rent and was met by the defence of illegality.
Held: The Court referred to a number of cases where the contract in question had been held to be unenforceable because it was intended that the subject matter of the contract was to be used for an unlawful purpose. It is not right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed: ‘Where an action is being heard by a jury it is, of course, quite usual and often very convenient at the end of the case for the plaintiff, or of the party having the onus of proof, as the defendant had here, for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. It also seems to be not unusual in the King’s Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff’s case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party’s counsel and upon no one else.’
(1936) 1 KB 169
England and Wales
Cited – Miller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not . .
Cited – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Lloyd v John Lewis Partnership CA 1-Jul-2001
The judge allowed the defendant’s submission of no case to answer without putting them to their election and again the claimant’s appeal succeeded. The trial judge had been persuaded that the rule in Alexander -v- Rayson had been altered by the . .
Affirmed – Benham Limited v Kythira Investments Ltd and Another CA 15-Dec-2003
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Cited – Massey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.180537
The claimant, a litigant in person, purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant now appealed against his claim being struck out for limitation.
Held: The appeal failed. The decision was one made in the discretion of the court. What constitutes ‘good reason’ for validating the non-compliant service of a claim form is essentially a matter of factual evaluation. The main factors, the weight of which will vary with the circumstances, are likely to be: (i) whether the claimant took reasonable steps to serve in accordance with the rules; (ii) whether the defendant or his solicitor knew of the contents of the claim form when it expired; (iii) what, if any, prejudice the defendant would suffer from validation of the non-compliant service.
‘there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction.’
Baroness Hale of Richmond, PSC Lord Wilson, Lord Sumption, Lord Carnwath, Lord Briggs JJSC
[2018] UKSC 12, [2018] 1 WLR 1119, [2018] WLR(D) 116, [2018] 3 All ER 487, UKSC 2016/0136
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, Video 22 Nov 2017 am, Video 22 Nov 2017 pm, WLRD
England and Wales
Application for Leave – Barton v Wright Hassall Solicitors Llp CA 16-Jun-2015
Application for leave to appeal . .
At CA – Barton v Wright Hassall Llp CA 23-Mar-2016
Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. . .
Cited – 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 . .
Cited – Denton and Others v TH White Ltd and Others CA 4-Jul-2014
(De Laval Ltd, Part 20 defendant) (Practice Note) Several parties applied for relief from sanctions, having been refused at first instance:
Held: The court identified a three stage process. It should first calculate the seriousness and or . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
Cited – Power v Meloy Whittle Robinson Solicitors CA 2-Jul-2014
The court itself had failed to effect proper service because of an administrative error.
Held: The Court rejected the submission that the claimant need not necessarily demonstrate that there was no way in which he could have effected service . .
Cited – Nata Lee Ltd v Abid and Another CA 18-Dec-2014
The Court pointed to the need to treat litigants in person in the same was as others: ‘ the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, . .
Cited – Hysaj v Secretary of State for The Home Department CA 16-Dec-2014
Applications for extensions of time to file an appeal should be taken the same as for applications for relief from sanctions, and should attract the same rigorous approach. There is no good reason to have a different approach for public law cases. . .
Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.605315
Denning LJ said: ‘Much maintenance is considered justifiable today which would in 1914 have been considered obnoxious. Most of the actions in our courts are supported by some association or other, or by the State itself. Comparatively a few litigants bring suits, or defend them at their own expense. Most claims by workmen against their employers are paid for by a trade union. Most defences of motorists are paid for by insurance companies. This is perfectly justifiable and is accepted by everyone as lawful, provided always that the one who supports the litigation, if it fails, pays the costs of the other side’.
Danckwerts LJ said: ‘the law of maintenance depends upon the question of public policy, and public policy . . is not a fixed and immutable matter. It is a conception which, if it has any sense at all, must be alterable by the passage of time.’
Denning, Danckwerts LJJ
[1968] 1 QB 686
England and Wales
Cited – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Cited – Trendtex Trading Corporation v Credit Suisse CA 1980
A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it.
Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.183808
The defendant argued that since he had had no notice of the proceedings, the judgment against him should be set aside: ‘It appears to me that [the rule] contemplates that although there may be service, it may take place even without knowledge on the part of the defendant. If that happens, the court is given power in its discretion to make such order as may be just.’
Willmer LJ
[1969] 1 WLR 120
England and Wales
Cited – Paddington Churches Housing Association Ltd v Sharif CA 27-Jan-1997
The landlord had obtained a possession order against its secure tenant. The tenant had left to go to Egypt, and had been in arrears of rent. The tenancy obliged the tenant to occupy the prperty as his main residence. The landlord re-let the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.239719
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to trace the sum of andpound;383,872 paid under a mistake of fact induced by fraud, into an account with a further defendant, a bank. That was the only claim against the bank. They had obtained a Mareva Injunction ex parte, against the fraud defendants, and an injunction restraining them all from disposing of the sum of andpound;383,872 if a lesser sum stood to their credit in accounts with the bank. The court was asked what orders could be made to assist the tracing, including disclosure of bank accounts wherever held.
Held: The court may make orders with the purpose of ascertaining the whereabouts of missing trust funds, even though a Mareva order over bank accounts generally could be oppressive. However without that information, the plaintiff may be unable to volunteer the undertakings expected of him. In limited cases where the court decides to make Mareva orders, it may make such disclosure orders as are necessary to ensure that the Mareva jurisdiction is properly and effectively exercised.
An ancillary disclosure order, made in conjunction with an asset preservation order, relies on the same source of jurisdiction as supports the asset preservation order.
Goff J distinguished between Mareva and conventional interlocutory injunctions in aid of a proprietary claim to a fund, holding that the plaintiffs were entitled to an injunction to restrain the defendants from disposing of the trust fund or what remained of it, quite apart from the Mareva jurisdiction.
Robert Goff J
[1981] QB 956, [1980] 2 All ER 347
England and Wales
Cited – Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH CA 2-Jan-1978
The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order . .
Cited – London and County Securities Ltd v Caplin ChD 26-May-1978
The court made a Mareva order with ancillary disclosure orders for the purpose of enabling the plaintiffs to trace property acquired by the defendant and so take steps to seize that property if it derived from their assets. . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Approved – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.416373
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 further loss was the issue of the notice of withdrawal, and the indemnity clause given was insufficient to cover this loss.
Andrew Smith J
[2009] EWHC 1843 (Comm), [2010] 1 Lloyds Rep 87, [2010] 1 All ER (Comm) 669
Appeal from – 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 . .
Appeal from – 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 . .
At First Instance – 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.
Updated: 30 July 2022; Ref: scu.368294
[2009] EWCA Civ 749
England and Wales
Updated: 30 July 2022; Ref: scu.365600
Application made in two actions that the claimants have permission pursuant to CPR 31.22 to disclose to Her Majesty’s Revenue and Customs documents and information obtained in the course of proceedings, and that they be released from undertakings given by them in relation to some of that information.
Jack J
[2009] EWHC 869 (QB), [2009] STC 1595, [2009] BTC 227, [2009] STI 1828
England and Wales
Updated: 30 July 2022; Ref: scu.347759
Application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child.
Munby J
[2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, (2009) 109 BMLR 106, [2009] Fam Law 1033
See Also – In re N (A Child); A v G FD 17-Jul-2009
The unmarried parents fought bitterly over residence contact with the child. . .
See Also – In re N (A Child) FD 6-Aug-2009
. .
See also – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
See Also – Doctor A and Others v Ward and Another FD 9-Feb-2010
. .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.349068
The claimant had accidentally disclosed a confidential document it should not have done. The defendant argued that there had been a waiver of privilege.
Held: Applying Al Fayed, it could not in these circumstances be said that the mistake was obvious.
Mann J
[2007] EWHC 2456 (Ch)
England and Wales
See Also – MMI Research Ltd v Cellxion Ltd and others PatC 22-Aug-2007
Application for unless order as regards defendant’s failure to serve defence. . .
Cited – Mohamad Al Fayed v The Commissioner of Police of the Metropolis CA 29-May-2002
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.347724
[2008] EWCA Civ 1630
England and Wales
See Also – Innovate Logistics Ltd v Sunberry Properties Ltd CA 18-Nov-2008
. .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.346260
[1835] EngR 523, (1835) 2 My and K 404, (1835) 39 ER 998
England and Wales
Updated: 30 July 2022; Ref: scu.316031
Julia Dias QC sitting as a deputy High Court judge
[2019] EWHC 1951 (Ch), [2019] WLR(D) 491
England and Wales
Cited – King and Another v Hoare 25-Nov-1844
A judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other: – Secus where the debt is joint and several. – And it is pleadable in bar, and not in abatement. – Such a plea need not contain a . .
Cited – Priestly v Fernie and Another CEC 23-Jun-1863
The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the . .
Cited – Kendall v Hamilton HL 1879
The plaintiff had made a loan to a partnership consisting of Wilson and McLay in order to finance certain shipments. Unknown to the plaintiff, the shipments were in fact for the joint benefit of Wilson, McLay and one Hamilton, who had authorised . .
Cited – Edinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
Cited – Pendleton and Another v Westwater and Another CA 28-Nov-2001
. .
Cited – Pendleton and Another v Westwater CA 30-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.640883
Falk J
[2019] EWHC 1953 (Ch)
England and Wales
Updated: 28 July 2022; Ref: scu.640607
Adam Johnson QC
[2019] EWHC 2008 (Ch)
England and Wales
Updated: 28 July 2022; Ref: scu.640610
Richard Spearman QC HHJ
[2019] EWHC 2139 (Ch)
England and Wales
Updated: 28 July 2022; Ref: scu.640620
[2019] EWHC 1806 (Ch)
England and Wales
Updated: 28 July 2022; Ref: scu.640604
[1892] SLR 30 – 186
Scotland
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.613619
Reasons for discharge of Norwich Pharmacal Order
[2016] EWHC 361 (Comm)
England and Wales
Updated: 28 July 2022; Ref: scu.560751
The corect approach to interpretation of a court order was, broadly, to apply the principles of statutory interpretation. In a court order, one was concerned with the intention of the court in making the order, and this was closer to the exercise involved in construing the intention of the legislature when enacting a statute than it was to construing the intention of parties to a contract.
Edward Murray sitting as a deputy judge of the Chancery Division
[2014] EWHC 1383 (Ch), [2014] WLR(D) 201, [2014] 1 WLR 3396
England and Wales
Updated: 28 July 2022; Ref: scu.525576
Application by the defenders for decree of absolvitor on their plea of res judicata.
Lord Hodge
[2013] ScotCS CSOH – 5
Scotland
Updated: 28 July 2022; Ref: scu.470531
The claimants seek, by way of application, an extension of time for the service of Amended Particulars of Claim
[2012] EWHC 2270 (TCC)
England and Wales
Updated: 28 July 2022; Ref: scu.463658
Procedure – application for recusal of judge from proceedings part-heard – apparent or perceived bias – pre-determination of issue or pre-disposition – whether judge would approach relevant decision with a closed mind and without impartial consideration of relevant issues – issue whether witness was an expert – earlier decision of judge in separate proceedings – previous findings in separate proceedings regarding owner/director of company carrying out due diligence for appellant
[2012] UKFTT 336 (TC)
England and Wales
Updated: 28 July 2022; Ref: scu.462768
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the applicants to be withheld from public disclosure. The disclosure of their identities would be inconsistent with that order and would undermine the confidentiality which the proceedings were intended to preserve.
The court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore had the inherent power, in his opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party’s identity would constitute an injustice to him.
Lord Reed
[2011] ScotCS CSIH – 18, 2011 GWD 12-272, 2011 SLT 733
Scotland
See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .
See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.430401
Douglas Brown J
[2003] EWHC 2051 (QB)
Regulation of Investigatory Powers Act 2000 65(2)(a)
England and Wales
Updated: 28 July 2022; Ref: scu.347395
Beatson LJ
[2009] EWHC 1436 (QB), [2010] PNLR 1
England and Wales
Updated: 28 July 2022; Ref: scu.347381
Application for injunctive relief made by the First Claimant, Heathrow Airport Limited, the manager and operator of Heathrow Airport, and the Second Claimant, the First Claimant’s managing director, against a number of persons and organisations who they allege are planning to take unlawful action so as to disrupt the operation of the airport.
Swift J
[2007] EWHC 1957 (QB)
England and Wales
Cited – Boyle, Regina (On the Application of) v Haverhill Pub Watch and Others Admn 8-Oct-2009
The claimant had been banned from public houses under the Haverhill Pub Watch scheme. He now sought judicial review of a decision to extend his ban for a further two years. The Scheme argued that it was not a body amenable to judicial review, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.347411
The court was asked whether a jury trial was appropriate under the 1920 Act.
Held: Avery J said: ‘It cannot be sufficient to bring a case within those words of the proviso that a plaintiff should merely allege in his particulars that the defendant has acted fraudulently. Suppose an action is brought for the price of goods sold and delivered. The only issue is whether the goods have been paid for or not. It cannot be sufficient for the plaintiff in such an action to allege that the defendant is a fraudulent person to entitle him to obtain trial by jury under this proviso. The words in question in the proviso refer to a case where a relevant issue of fraud is raised. No such relevant issue is raised in this action.’
Avery J
[1923] 1 KB 45 T
Administration of Justice Act 1920 2(1)
England and Wales
Cited – Parsons, Parsons v Provincial Insurance Plc CA 20-Feb-1998
The insurers refused to pay on a fire claim, saying that it was started by the insured, that the proposal was incorrect, and that in extending the value insured, the insured had misrepresented the situation. The court considered whether a jury trial . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.375999
Arnold J reviewed the authorities and expressed his conclusion that an injunction will not be granted to prevent a future publication of information that has ceased to be confidential. He qualified this statement in relation to information that could be regarded as having a limited degree of confidentiality even though it could be ascertained from public domain sources. He also separately discussed the question whether a court had power to grant an injunction to prevent a defendant from benefiting from a past misuse of confidential information even at a time when the information has ceased to be confidential.
Arnold J
[2009] EWHC 1456 (Ch), [2010] FSR 2
England and Wales
See Also – Vestergaard Frandsen As and Another v Bestnet Europe Ltd and Others ChD 3-Apr-2009
The claimant companies alleged misuse of trade secrets acquired by the defendants through former employees. . .
Cited – Roger Bullivant Ltd v Ellis CA 1987
The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had . .
Cited – Universal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .
Explained – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – British Broadcasting Corporation v Harpercollins Publishers Ltd and Another ChD 4-Oct-2010
The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV . .
Appeal From – Vestergaard Frandsen Sa ( Mvf3 Aps) and Others v Bestnet Europe Ltd and Others CA 20-Apr-2011
The claimants manufactured insecticidal fabrics. They claimed that the defendants had produced their own product using confidential information obtained from their former employees now working for the defendant. The courts had granted injunctions . .
Appeal from – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others CA 25-Apr-2013
Appeal by the defendants from the judgment and order of Arnold J in which he dismissed the defendants’ application to strike out in part the claimants’ Amended Points of Claim in an enquiry as to damages for breach of confidence. . .
At ChD – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.347269
Rix LJ
[2009] EWCA Civ 616
England and Wales
Updated: 28 July 2022; Ref: scu.347213
The Claimants were the residents of a housing estate who applied for a Group Litigation Order to pursue their claim of nuisance and negligence against a waste contractor. The Defendant requested the disclosure of their ‘after the event’ insurance policy as a condition of the GLO.
Held: The policy was disclosable both under CPR31.14 and under the court’s case management powers. This was an exception to the traditional approach that insurance policies are private as between the insured and insurer and thus not disclosable.
[2009] EWHC 1033 (TCC)
England and Wales
See Also – Barr and Others v Biffa Waste Services Ltd (No.2) TCC 2-Oct-2009
. .
See Also – Barr and Others v Biffa Waste Services Ltd (No 3) TCC 19-Apr-2011
The claimants sought damages in nuisance saying that the defendant’s waster recycling plant was causing odorous pollution of their nearby homes. . .
See Also – Barr and Others v Biffa Waste Services Ltd [No 4] TCC 19-Apr-2011
. .
See Also – Barr and Others v Biffa Waste Services Ltd CA 19-Mar-2012
The claimants appealed against rejection of their claims for nuisance in the form of smells emanating from the respondent neighbour’s waste processing plant. The defendant relied upon the grant of planning permission.
Held: The cause of action . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.347142
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim injunction to preserve the situation pending a final ruling. That power derived from the power of any superior court to supervise its own procedures. The principles to be applied were the general ones applying those from American Cynamid, amended as necessary to accord with the context of public law. However, here the very substantial works were already under way, the claimants were understandably unable to undertake for any damages, and the balance of convenience lay against the applicants, and no order should be made.
Lord Walker of Gestingthorpe Sir Martin Nourse Sir Andrew Leggatt
[2003] UKPC 63, Times 25-Sep-2003, Gazette 16-Oct-2003, [2004] 2 P and CR 2, [2004] Env LR 16, [2003] 1 WLR 2839
Commonwealth
Cited – Thomas Reckley v The Minister of Public Safety and Immigration and others (Petition for a stay of execution) PC 13-Jun-1995
(The Bahamas) If a serious constitutional issue is fairly raised by an appeal as to the constitutionality of the death penalty, then the death penalty must be stayed. . .
Cited – Her Majesty’s Attorney General v Punch Limited and another HL 12-Dec-2002
A former MI5 agent, Mr Shayler, was to be prosecuted under the Official Secrets Act, and an injunction against publication was granted. The respondent published further works by Mr Shayler, and now appealed a finding that it had acted in contempt of . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
See Also – Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment Belize Electric Company Limited PC 29-Jan-2004
PC (Belize) Lord Walker said: ‘It is now clear that proceedings for judicial review should not be conducted in the same manner as hard fought commercial litigation. A Respondent authority owes a duty to the court . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.185741
A judge has no power at an interlocutory stage to order the editing of an expert’s report.
Times 27-Dec-1996
England and Wales
See Also – Scotch Whisky Association and Others v Glen Kella Distillers Ltd (No 2) ChD 1-Apr-1997
Re-distilled whisky may not be called ‘whisky’ when re-sold – not as defined. . .
See Also – Scotch Whisky Association and Others v Glen Kella Distillers Ltd (No 2) ChD 1-Apr-1997
Re-distilled whisky may not be called ‘whisky’ when re-sold – not as defined. . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.89846
Power existing to vary order to provide for disclosure of specific documents relating to particular issue for disclosure
James Pickering QC sitting as a deputy High Court judge
[2020] EWHC 1716 (Ch), [2021] WLR(D) 71
England and Wales
Updated: 28 July 2022; Ref: scu.657813
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court. The friend’s conduct attracted the attention of the Judge who intimated that he should desist whereupon the barrister left the Court. The Judge dismissed the husband’s petition but granted the wife a decree nisi.
Held: The appeal succeeded. The Judge had acted in error. Every party had the right to have a friend present in court beside him/her to assist by prompting, taking notes and quietly giving advice. By reason of the Judge’s intervention the husband had been deprived of that right and, therefore, there had been an irregularity in the proceedings. The court approved the use of an unpaid unqualified friend to a litigant to assist him in presenting his case when acting in person in a defended divorce case. Such a friend would not be able address the court except with the express allowance by the court of an ad hoc right of audience.
Davies LJ, Sachs LJ, Karminski LJ
[1971] P 33, [1970] 3 WLR 472, CAT 679/1991
England and Wales
Cited – Collier v Hicks 7-Jun-1831
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal . .
Explained – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Cited – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – Regina v Leicester City Justices, ex parte Barrow CA 1-Aug-1991
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had . .
Cited – Mensah v Islington Council and Another CA 1-Dec-2000
Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for . .
Cited – Paragon Finance Plc v Noueiri CA 4-Jul-2001
. .
Cited – Izzo v Philip Ross and Co (a Firm) ChD 31-Jul-2001
Whilst litigants in person should be allowed the assistance of a McKenzie friend, the duties of the friend should not normally include representation and advocacy. Nevertheless, each case should be viewed separately, and applications for permission . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.180926
Chief Master Marsh
[2020] EWHC 3395 (Ch)
England and Wales
Updated: 26 July 2022; Ref: scu.656917
The court considered the need for a litigation friend to be appointed for the first claimant.
Stewart J
[2019] EWHC 1746 (QB)
England and Wales
Updated: 26 July 2022; Ref: scu.639728
Having found that the bank had failed to make proper disclosure when obtaining freezing order, the court now asked how the failure should be marked in costs.
Males J
[2016] EWHC 1991 (Comm)
England and Wales
Updated: 26 July 2022; Ref: scu.567887
Appeal against case management decision restricting evidence.
Knowles J
[2015] EWHC 68 – 2 (QB)
England and Wales
Updated: 26 July 2022; Ref: scu.544842
PROCEDURE – Application for permission to extend the time for appealing – overriding objective – application refused
[2012] UKFTT 168 (TC)
England and Wales
Updated: 26 July 2022; Ref: scu.462624
application by the compensating authority for permission to appeal against an ‘interim decision’
[2010] EWCA Civ 474, [2010] RVR 122
England and Wales
Updated: 26 July 2022; Ref: scu.424781
The court was asked as to the extent to which it is an abuse of the process for a claimant to commence proceedings without having the relevant cause of action vested in him, and whether it would be right to allow him to amend his pleadings to plead a subsequent assignment of that cause of action when that assignment took place outside the relevant limitation period.
Held: The claim was an abuse of process.
Mann LJ said: ‘In my view the starting point is that where a man starts proceedings knowing that the cause of action is vested in someone else, then it is hard to see why those proceedings are not an abuse. He has started proceedings in which, even if he proves all the facts he wants to prove and establishes all the law he wants to establish, he will still lose because he does not have a right to sue. It is hard to see how that cannot be an abuse. Only people who own causes of action, or who have an appropriate interest in proceedings, have any business asserting the cause of action or starting proceedings. Any other use of the court’s proceedings is improper . . A permitted amendment would not so much cure the abuse of process as be a reward for it. It seems to me to be wrong in principle to confer such rewards on those who act in that way.’
Laws, Thomas, Mann LJJ
[2009] EWCA Civ 543, [2009] CP Rep 40, [2009] PNLR 31
England and Wales
Appeal from – Pickthall v Hill Dickinson Llp and Another ChD 13-Oct-2008
The defendant sought to have struck out a claim where the claimant was bankrupt, and the debt was unassigned from the trustee in bankruptcy. . .
Cited – Nelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .
Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346825
[2009] EWHC 1295 (Ch)
England and Wales
Updated: 26 July 2022; Ref: scu.346869
Application for security for costs in respect of an appeal
Longmore LJ
[2009] EWCA Civ 510
Council Regulation 44/2001/EC (OJ January 16, 2001 L12/1) 22
England and Wales
Cited – Choudhary and Others v Bhatter and Others CA 11-Nov-2009
The parties disputed matters within a company in India. The defendant appealed against an order under which the court had accepted jurisdiction.
Held: The appeal succeeded. The opening words of article 22 giving jurisdiction ‘regardless of . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346788
The Defendant applied to stay the proceedings on the grounds that there were concurrent proceedings in Iran or, in the alternative, that the proceedings be stayed pending the conclusion of the concurrent proceedings in Iran.
Held: Teare J said: ‘prima facie it is an abuse of process for a claimant to pursue a defendant for the same debt or damages in two jurisdictions.’
Teare J
[2009] EWHC 1217 (Comm)
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346739
The first claimant had been severely beaten as he left school. He and his parents also claimed post traumatic stress. They alleged that the school had been negligent in having allowed racial tensions to develop. The claimant was white, and his attackers Asian. The claimants sought disclosure of the school’s disciplinary records unredacted so that the racial origins could be identified. The school, reacted saying that beyond disclosing the names of the attackers, the remaining names were protected by confidence.
Held: Some requests were too wide to satisfy the need for certainty. Others would require specific justification to support the interference with the particular privacy of children.
Nicol J
[2009] EWHC 1140 (QB)
European Convention on Human Rights 8
England and Wales
Cited – Kenny, Regina (on the Application of) v Leeds Magistrates Court, Leeds City Council Admn 5-Dec-2003
In cases involving children, Article 3 provides that the best interests of the child are a primary consideration, not the primary consideration.
The court looked at the test for making an interim ASBO: ‘Consideration of whether it is just to . .
Cited – Todd v Crown Prosecution Service; T v Director of Public Prosecutions and Another; Todd v DPP QBD 6-Oct-2003
The defendant had been under 18 at the commencement of proceedings but attained 18 during them. The newspaper was granted leave to refer to him by name upon his becoming 18.
Held: Denying the appeal. The balance between the freedom of the . .
See Also – Webster and Others v Ridgeway Foundation School QBD 5-Feb-2010
The claimant had been severely injured when attacked at school. He was a white youth, and his attackers all Asian. The school had a history of inter-racial tension, and he claimed in negligence, and that they had failed to protect his human right . .
See Also – Webster and Others v The Ridgeway Foundation School QBD 2-Mar-2010
The court considered whether costs should be payable on a standard or indemnity basis. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346752
Application for leave to appeal against order for surrender of passport.
Rimer LJ, Aikens LJ
[2009] EWCA Civ 483
England and Wales
Updated: 26 July 2022; Ref: scu.346791
The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been about whether any arguable issue of law arose. None had in fact been shown. The claimant had been able to understand why his appeal was rejected, and ‘where an appeal is possible only on a point of law quite brief reasons may be sufficient.’
Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2009] UKPC 23
Applied – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346617
Appeal against striking out of defence after failure to comply with ‘unless order’
Gillen J
[2009] NIQB 32
Updated: 26 July 2022; Ref: scu.346504
The court was asked as to the propriety of the procedure adopted by the circuit judge, who when considering a claim for false imprisonment, assault and trespass had initially acceded to an application by the defendant which was made without notice before deciding in the absence of the claimant first that the defendant’s officers had reasonable grounds for believing the particular person was present in the premises and second that the claimants would be prohibited from asking any questions of the defendants’ witnesses which might reveal the grounds for their belief. The ground of appeal was that the procedure adopted by the circuit judge was contrary to the ordinary rules of procedure and was unfair. Lord Bingham CJ explained that where the complaint was lack of particularity, then the defendant had three choices when faced with the contention that the claim should be struck out as disclosing no defence. They were first to accept that the paragraph should be struck out and second to contend that the paragraphs were unobjectionable while the third course which might be combined with the second course was to accept that the paragraphs were objectionable as they stood but to contend that they could be saved by amendment and by the addition of appropriate particulars. If the defendant felt inhibited from disclosing information, then this would be the proper subject of a claim for Public Iinterest Immunity.
Lord Bingham CJ, May LJ
[1999] EWCA Civ 3034
England and Wales
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.346269
Briggs J
[2007] EWHC 2904 (Ch)
England and Wales
Updated: 26 July 2022; Ref: scu.262954
Applications for civil proceedings orders.
[2005] EWHC 3033 (Admin)
England and Wales
Updated: 26 July 2022; Ref: scu.238161
[2004] NIQB 12
Northern Ireland
Updated: 26 July 2022; Ref: scu.195145
Further protection was afforded to those holding overseas assets of persons subject to Mareva injunctions.
Clarke J
(1995) 1 Lloyd’s Rep 673
England and Wales
Cited – Bank of China v NBM LLC and others CA 18-Dec-2001
A world wide asset freezing order, should as regards property in other jurisdictions allow that those having control of such assets must be free to deal with them as required by local law and other legal obligations. An order had included a ‘Baltic . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.180690
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could depart from an earlier decision in those ‘rare and exceptional cases’ where the court was ‘satisfied that the decision involved a manifest slip or error’.
Lord Donaldson MR, Balcombe LJ, Nicholls LJ
[1990] Fam 194, [1989] EWCA Civ 8, [1989] 3 WLR 748, [1990] 1 FLR 125, [1989] 3 All ER 193
England and Wales
Cited – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.182915
enforcement – controlled goods agreements – taking control of goods – entry to premises – High Court Enforcement Officers – High Court Enforcement Agents – statutory construction – technology – Writs of Control – debt – fees – policy – parliament – regulations – delegated legislation – video technology – ECHR Art. 8 – High Court Enforcement Officers
[2021] EWHC 15 (QB)
England and Wales
Updated: 25 July 2022; Ref: scu.657366
Issues after world-wide freezing order
Mr Nicholas Thompsell
[2021] EWHC 124 (Ch)
England and Wales
Updated: 25 July 2022; Ref: scu.657508
application by the Defendant to set aside judgment in default of defence for a sum to be determined.
[2019] EWHC 1904 (QB)
England and Wales
Updated: 25 July 2022; Ref: scu.639725
Use of disclosed documents
Andrew Baker J
[2018] EWHC 3045 (Comm)
England and Wales
Updated: 25 July 2022; Ref: scu.631321
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 embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it; second, it should not embark upon such an enquiry in order to provide a platform or springboard for possible future proceedings in the administrative court; third, such an exercise runs the risk of confusing the different perspectives and principles governing the exercise by the Court of Protection of its functions and the exercise by a public authority of its functions; and fourth, it would risk exposing the public authority to impermissible pressure.
Sir James Munby P pointed out that ‘the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate’
Sir James Munby P FD, Treacy, Gloster LJJ
[2015] EWCA Civ 411, [2015] COPLR 505, [2016] Fam 87, [2015] Med LR 287, [2015] 3 WLR 1585, [2015] WLR(D) 208, (2015) 18 CCL Rep 521
England and Wales
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 – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .
Leave – 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. . .
Cited – 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.
Updated: 25 July 2022; Ref: scu.546455
[2014] EWCA Civ 872
England and Wales
Updated: 25 July 2022; Ref: scu.526986
The second defendant sought the lifting of an asset freezing order made against it.
Mackie QC J
[2013] EWHC 3618 (Comm)
England and Wales
Updated: 25 July 2022; Ref: scu.518330
(Extra Division, Inner House)
Lady Smith
[2013] ScotCS CSIH – 99, 2014 SLT 71, 2013 GWD 40-759
Scotland
Updated: 25 July 2022; Ref: scu.518513
Ramsey J
[2009] EWHC 943 (TCC)
England and Wales
Updated: 25 July 2022; Ref: scu.376185
Application for anti-suit injunction.
[2009] EWHC 3642 (Comm)
England and Wales
Updated: 25 July 2022; Ref: scu.396539
The claimants had invested in schemes managed through a limited liability partnership by the defendants. They now sought orders giving them access to papers held by the defendants’ solicitors
Pelling QC HHJ
[2015] EWHC 2 (Ch)
England and Wales
Updated: 25 July 2022; Ref: scu.540533
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had occurred, and was now asked whether without prejudice communications made during the mediation could now be admitted.
Held: Mediation was now actively encouraged by the courts, and it required the use in general of the rule against admission of without prejudice statements. However, ‘the admission of those communications in evidence is not prevented by the without prejudice rule since the situation is fairly and squarely within the recognised exception to the rule in respect of such communications listed by Robert Walker LJ in Unilever.’ Admitting that material, the court found that there had been no concluded settlement.
Stuart Isaacs QC J said: ‘The possible existence and desirability of a distinct privilege attaching to the entire mediation process is also usefully discussed in Brown and Marriott ADR Principles and Practice (2nd edition, 1999) at paras 22-079 to 22-097. Counsel for both ADR Group and Mrs Patel accepted, however, that this case could be decided under the existing without prejudice rule. In particular, this was because it was common ground between the parties that the court could not properly require Mr Walker to give evidence and, consistently with clause 7.4 of the agreement to mediate, neither party was intending to issue a witness summons against him. I agree that this case can be decided under the existing without prejudice rule. It may be in the future that the existence of a distinct mediation privilege will require to be considered by either the legislature or the courts but that is not something which arises for decision now.’
Stuart Isaacs QC J
[2007] EWHC 625 (Ch)
England and Wales
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Hodgkinson and Corby Ltd and Another v Wards Mobility Services Ltd ChD 6-Nov-1996
The claimants brought a claim in passing-off first obtaining an interim injunction but then failing at trial. The defendants then claimed under the undertaking in damages given. The claimants now sought to say that the injunction could have been . .
Cited – Talbot v Berkshire County Council CA 23-Mar-1993
In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .
Cited – Fidelitas Shipping Co Ltd v V/O Exportchleb CA 1965
Where there is an award that is on its face an interim award, then the arbitrator is only functus officio with respect to the issues dealt with in that interim award and retains the authority to deal with the remaining matters. Issue estoppel . .
Cited – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – Brisbane City Council v Attorney General for Queensland PC 1978
Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Aird and Another v Prime Meridian Ltd CA 21-Dec-2006
The court had ordered preparation of a joint statement by the parties expert witnesses with a view to encouraging mediation. The claimant obtained an order that the statement was privileged, and could not be used later in the proceedings.
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – McTaggart v McTaggart 1948
Evidence was admitted from a probation officer who had been present at a without prejudice interview between a divorcing couple.
Held: This was only possible because the wife had not objected to the husband giving evidence as to what . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Savings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
Cited – Venture Investment Placement Ltd v Hall 2005
The parties agreed to mediate their dispute. The agreement contained a confidentiality clause. The court granted an interlocutory injunction to prevent disclosure of matters within the mediation. . .
Cited – Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd ChD 15-Jul-1992
Without Prejudice negotiations continue on that basis till clearly altered. . .
Cited – Sampson v John Boddy Timber Ltd CA 17-May-1995
A barrister should not liable for wasted costs when he pursues arguable point for his client. Unless a party makes plain its intention that a settlement offer is made on an open basis, it remains covered by the cloak of the without prejudice rule . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.251536
Case management decision in trade mark infringement action, on the extent to which the court should give permission for a survey to be conducted, and for evidence resulting from previous surveys to be admitted.
Held: Mann J gave the claimant permission to administer questionnaires to members of the public in the form attached to the order.
Mann J said: ‘In the case before me, as will appear, it is necessary to bear in mind the juridical basis of what it is that the court is doing when exercising its control. In my view it is doing (at least) the following:
i) So far as a party is going to seek to put expert evidence before the court, the court is exercising its power to control the amount and nature of expert evidence in order to make sure the expert evidence is proper evidence, admissible, and proportionate.
ii) So far as a party seeks to put in the actual answers to questions, the court is ensuring the evidence is admissible and probative.
iii) So far as the court is controlling the calling of live witnesses obtained as a result of some form of survey evidence (so-called witness collection exercises) it is again ensuring that the evidence is admissible and probative. In particular, it is acting to prevent a party seeking to call a witness whose evidence is going to be tainted to an unacceptable degree by the mechanism under which it is collected (an inappropriate question).
iv) In so doing, the court is ensuring that costs are not wasted and are proportionate. It is wrong for costs to be wasted in conducting hopeless surveys, for the other party to have to waste costs dealing with that evidence, and for court time to be wasted in dealing with it at trial.
v) When a court is acting in this capacity it must bear in mind that it is acting at some remove from the trial. If it disallows a survey it is concluding, short of a trial, that evidence which one party wishes to adduce should not be allowed in because it will be of no or insufficient value. In embarking on that exercise it must acknowledge that there will be cases in which it is not wholly clear that the evidence in question will be valueless. In those circumstances the right course may be not to bar the evidence or survey at the interim stage, but to allow it and to have more informed argument at the trial (or conceivably at another interim stage, provided that that is a cost-effective way of going about the matter).’
Mann J
[2011] EWHC 1038 (Ch)
England and Wales
Directions – A and E Television Networks Llc and Another v Discovery Communications Europe Ltd ChD 1-Feb-2013
The claimants had operated the ‘History’ and associated variant TV channels and trade marks. The claimed that the defendant’s ‘Discovery History’ channels were in breach. The defendants challenged the validity of the trade marks. The court now . .
Cited – Marks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.434878
The court considered how a Part 36 offer could be treated as accepted when it involved an agreement to transfer land, because the offer and its acceptance would not operate under the 1989 Act.
Held: The agreement was enforceable. The Civil Procedure Rules, and the inherent jurisdiction of the court, allowed the creation of rights and obligations over and above separate rights: ‘the solution to this case is not to be sought by creating two mutually exclusive pigeonholes marked ‘Contract’ and ‘Part 36 Settlement’. It seems to me that the acceptance of a Part 36 offer may well create a contract and probably does so in the vast majority of cases. When it does create a contract which requires further implementation (e.g. a contract to assign the copyright in a song) it may be possible to obtain specific performance. Or if the contract is broken a party may choose to start a new claim on that contract. But what I have to decide is whether a Part 36 acceptance that, for some reason, creates no contract can nevertheless be enforced by application to the court.
In my judgment, if parties who are before the court choose to employ machinery prescribed by the court’s rules in order to settle their dispute, they must be taken to submit to the consequences. Namely, that if the offer is accepted the court may enforce it. A party who makes a valid Part 36 offer, or one who accepts it, must be taken to be binding himself to submit to those consequences. ‘
Peter Prescott QC
[2007] EWHC 803 (Ch), [2007] 3 All ER 863, [2007] 1 WLR 2953
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited – Steadman v Steadman HL 1976
A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. . .
Cited – Mehta v J Pereira Fernandes SA ChD 7-Apr-2006
The parties were in dispute. The now respondent threatened winding up. The appellant had someone in his company send an email requesting an adjournment and apparently giving a personal guarantee to a certain amount. The application was adjourned, . .
Cited – Nweze and Another v Nwoko CA 29-Mar-2004
The parties had settled their dispute in an oral compromise agreement under which it was agreed that land would be sold at the best price reasonably obtainable. One now argued this was unenforceable as an agreement for the disposal of land requiring . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .
Cited – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
Cited – Hollingsworth v Humphrey CA 10-Dec-1987
The parties disputed the effect of a Tomlin order, an order made by the court that stayed the proceedings on the terms of a compromise ‘except for the purpose of carrying the said terms into effect’. The defendant had failed to honour the contract . .
Cited – Jennison v Baker CA 1972
Salmon LJ said: ‘The inherent power of the judges of the High Court to commit for contempt of court has existed from time immemorial . . The power exists to ensure justice shall be done. And solely to this end, it prohibits acts and words tending to . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.251426
The court refused to allow the defendants to amend their defence so as to rely upon the second limb of the definition of fault in the 1945 Act as grounds for reducing a claim for deceit.
Mummery J
[1994] 2 EGLR 229, [1993] 1 WLR 1462
Law Reform (Contributory Negligence) Act 1945
England and Wales
Updated: 25 July 2022; Ref: scu.251377
A case is suitable for striking out which raises an unwinnable case, where continuance of the proceedings is without any possible benefit and would waste resources on both sides.
[2000] EWCA Civ 3037, [2000] CP Rep 70, [2000] CPLR 9
England and Wales
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.342142
Coulson J considered the place of expert evidence in cases involving road traffic accidents, saying: ‘it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula, against which the defendant’s actions are then to be rigidly judged with a mathematical precision.’
Coulson J
[2009] EWHC 704 (QB)
England and Wales
Cited – Ahanonu v South East London and Kent Bus Company Ltd CA 8-Oct-2007
Laws LJ said: ‘There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of . .
Cited – Sinclair v Joyner QBD 23-Jun-2015
The claimant cyclist sought damages from the defendant motorist after a collision in which she was severely injured. They approached each other on a narrow lane. The claimant said that the defendant did not pull over as much as she should, and the . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341880
Applications inter alia for anti-suit injunctions after entry of judgment (unchallenged) for a sum exceeding US$1,100,000.
Burton J
[2009] EWHC 612 (QB), [2009] 2 Lloyds Rep 115
Updated: 24 July 2022; Ref: scu.341871
The court considered the extent to which a judge having conduct of a civil trial had an obligation to assist a litigant in person in the conduct of his case. Rimer LJ said: ‘Mr Lemas represented himself and, like any litigant in person, he enjoyed a degree of autonomy as to the manner in which he conducted his case. Trying cases in which a party is representing himself can be amongst the more difficult judicial tasks. Judges should be, and are, properly sensitive to the disadvantages that such litigants face; and will ordinarily do their best to ensure that the unrepresented litigant has a proper opportunity to present his case fully. This may, for example, require the granting of adjournments in circumstances in which no like adjournment would be granted to a represented litigant. It may require a degree of indulgence during the litigant’s examination of witnesses. It may require the judge to take a firm line in keeping the litigant to the relevant issues.
There are, however, limits to what a judge can and should do in order to assist such a litigant. It is for the litigant himself to decide what case to make and how to make it, and what evidence to adduce and how to adduce it. It is not for the judge to give directions or advice on such matters. It is not his function to step into the arena on the litigant’s side and to help him to make his case.’
Mummery, Rimer, Sullivan LJJ
[2009] EWCA Civ 360
England and Wales
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341792
Application for permission to appeal against the strike out of a claim against a consultant psychiatrist who had provided a report in a child custody application.
[2000] EWCA Civ 376
England and Wales
Updated: 24 July 2022; Ref: scu.330966
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and include taking instructions from the claimant, but only before the special advocate sees any of the closed material, considering whether further documents are required and whether gisting is required, discussing the problems with counsel for the Secretary of State, making appropriate submissions to the court and testing and probing the evidence as the special advocate thinks fit.’
Sir Anthony Clarke MR
[2009] EWCA Civ 287, [2009] 1 WLR 2049, [2009] All ER (D) 35
England and Wales
Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – S v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.329546
The court was asked as to the circumstances in which an applicant should be denied interim injunctive relief on the grounds of delay.
Hodge QC J
[2010] EWHC 2051 (Ch)
England and Wales
Updated: 24 July 2022; Ref: scu.439799
Applications by the defendants for a combination of a strike out and for summary judgment.
Purle QC HHJ
[2014] EWHC 4611 (Ch)
England and Wales
Updated: 24 July 2022; Ref: scu.550165
A judge of the High Court should respect (but is not bound to follow) a decision of another judge of the High Court, but must follow decisions of the Court of Appeal and the House of Lords.
Lord Goddard CJ
[1947] KB 842
England and Wales
Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Cited – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.198153
This was a renewed application for leave to apply for judicial review of decisions of the Panel not to adjourn its disciplinary proceedings against Mr Fayed.
Neill LJ, Steyn LJ
[1992] BCC 524
England and Wales
Cited – Regina v Executive Counsel of the JDS, ex parte Hipps ChD 1996
The court considered the law as to whether disciplinary procedings should be stayed pending the outcome of civil proceedings.
Held: The court was not reviewing the decision not to adjourn the proceedings, but exercising an original . .
Cited – Regina v Chance, ex parte Smith QBD 1995
The applicant sought to delay disciplinary proceedings by the accountancy body pending the outcome of civil litigation over a related matter.
Held: ‘ . . as Parliament has entrusted the initial valuation of the case against the applicants to . .
Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.198151
The applicant sought to delay disciplinary proceedings by the accountancy body pending the outcome of civil litigation over a related matter.
Held: ‘ . . as Parliament has entrusted the initial valuation of the case against the applicants to the respondent, and has built into the disciplinary scheme adequate procedural protections for the applicants, we believe that absent quite exceptional circumstances such as those listed by Steyn LJ (in Fayed) . . we should not get involved in a detailed consideration of the merits, but accept the respondent’s valuation that there is a strong public interest in the continuance of this enquiry (which could lead to disciplinary proceedings) not being delayed by order of the court.’
[1995] BCC 1
England and Wales
Cited – Regina v Institute of Chartered Accounts and Others, Ex Parte Brindle and Others CA 12-Jan-1994
The Bank’s liquidator action was to be concluded before a disciplinary enquiry, and the enquiry should be stayed accordingly. . .
Cited – Regina v Panel on Take-overs and Mergers, ex parte Fayed CA 1992
This was a renewed application for leave to apply for judicial review of decisions of the Panel not to adjourn its disciplinary proceedings against Mr Fayed. . .
Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Cited – Regina v Executive Counsel of the JDS, ex parte Hipps ChD 1996
The court considered the law as to whether disciplinary procedings should be stayed pending the outcome of civil proceedings.
Held: The court was not reviewing the decision not to adjourn the proceedings, but exercising an original . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.198150
The court asked whether the Divisional Court was bound by previous decisions of that court, and answered: ‘we find it difficult to imagine that a single judge exercising this (supervisory) jurisdiction (of the High Court) would ever depart from a decision of a Divisional Court.’
[1985] QB 67
England and Wales
Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Cited – Hertfordshire County Council v National Grid Gas Plc Admn 2-Nov-2007
The council laid complaints against the defenedant that it had not properly re-instated road surfaces after completing works. It now appealed, by way of case stated, against the court’s acceptance of the defendant’s argument that the large number of . .
Cited – Dyer, Regina (on The Application of) v Watford Magistrates Court Admn 16-Jan-2012
The appellant sought judicial review of the magistrates’ decision to convict him of the two offences of causing racially aggravated fear or provocation of violence, contrary to section 31(1)(a) of the 1998 Act, and of causing fear or provocation of . .
Cited – Karia, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Oct-2002
The defendant appealed by case stated against a decision of the Crown Court on appeal rejecting his assertion that he had not been proved to have been driving a car on the occasion when the offences occurred. The court had allowed a dock . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.198154
Sir Robert Megarry V-C criticised an approach to litigation which amounted to: ‘ A desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism.’
Sir Robert Megarry V-C
[1979] FSR 298
England and Wales
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.658105
Combined summary judgment and strikeout application made by the defendant in this managed litigation in which large numbers of individuals sue the defendant for invasions of their privacy by unlawful information gathering. The prime techniques of unlawful information gathering alleged against the defendant are voicemail interception (‘phone hacking’) and instructing private investigators to obtain information such as phone records, credit card details, car registration details and other private information.
Mann J
[2019] EWHC 2122 (Ch)
England and Wales
Updated: 24 July 2022; Ref: scu.640623