Category: Litigation Practice

Betterment Properties (Weymouth) Ltd v Dorset County Council: ChD 2 Mar 2007

The company sought an order removing some 46 acres of land from designation as a village green. The claimant sought the amendment of the register. The parties disputed what evidence beyond that available to the committee making the decision should be admissible.
Held: The jurisdiction of the court was not an appellate one, and therefore the court was not restricted by appellate rules. The court was free to use the procedure best calculated to enable a just and fully informed decision to be reached. It would be a matter for the judge exercising his case management powers to specify those acts.
Lightman J considered the section 14 procedure: ‘In my judgment on the face of the statute the court is free to adopt the procedure best calculated to enable a just and fully informed decision to be reached whether ‘no amendment or a different amendment ought to have been made’, whether it is just to rectify the register, what should stand as evidence and what evidence should be admitted. The court in exercise of its case management powers will have regard to the process adopted by the registration authority or any panel when the amendment of the register under s 13 of the 1965 Act was made and the evidence adduced before it. It will no doubt have in mind that with the passage of time recollections will have dimmed and potential witnesses may have died or ceased to be available. It may (for example) direct that evidence (in particular if unchallenged) adduced before the registration authority or any panel shall stand as evidence and any finding by it shall stand: (a) as a finding of fact at the hearing before the court; (b) as evidence; or (c) as a finding of fact in the absence of evidence to the contrary; and in deciding on the admissibility of evidence the court will no doubt bear in mind that no amendment shall be rectified unless it is just to do so and that it may be unjust to order rectification on the basis of new evidence eg which cannot now be challenged but could have been when registration took place.
This approach accords with what Parliament must have had in mind in conferring the jurisdiction to rectify. First it is no trivial matter for a public or private landowner to have land registered as a town or village green. If the entry in the register cannot be corrected under s 14, registration can effect (potentially catastrophic) blight on user and development. Section 16 of the 2006 Act when it comes into force will authorise the Secretary of State in the circumstances and on the conditions there set out to direct deregistration and accordingly where the provisions of that section can be invoked the blight may no longer be permanent, but the consequences of registration remain serious. Second the procedure on the application for registration is intended to be relatively simple and informal. There is no provision for the service of subpoenas or for orders for disclosure. Relevant evidence may only emerge later. It may be difficult (if not impossible) at a later date to identify the exact nature and limits (let alone the credibility) of the evidence adduced in support of (or against) the application or of the registration authority’s conclusions as to the credibility or relevance of any particular evidence. Because of the absence (for any of a number of reasons) of objection to the application, it may have been appropriate for the Applicant for registration to limit the evidence he adduced or the relevant evidence may have been unavailable. The problem is complicated when (as in this case) there is a change in ownership of the servient land. The new owner is likely to be at a disadvantage knowing the earlier course of events. To limit the evidence available in the High Court to the evidence adduced before the registration authority is calculated to raise serious practical problems, give rise to unfairness and to emasculate the jurisdiction. Parliament must surely have preferred to vest in the court the power to decide whether the admission of any particular evidence was calculated to promote the achievement of justice’.

Judges:

Lightman J

Citations:

[2007] EWHC 365 (Ch), Times 02-Mar-2007, [2007] NPC 26, [2007] 2 All ER 1000

Links:

Bailii

Statutes:

Commons Registration Act 1965, Countryside and Rights of Way Act 2000

Jurisdiction:

England and Wales

Citing:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Jones v Attorney General CA 1974
The court was concerned with an appeal against an order made following an inquiry made under statutory powers by the Charity Commission, which had resulted in a written report. The court held that the issues were at large, but that the contents of . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Cited – Regina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .

Cited by:

Appeal from – Betterment Properties (Weymouth) Ltd v Dorset County Council CA 6-Feb-2008
A large area of land had been registered as a town or village green. The company, owner of the land, had succeeded in having the registration removed. The Council appealed, question whether the procedure undertaken by the High Court on such an . .
See Also – Betterment Properties (Weymouth) Ltd v Dorset County Council and Another ChD 23-Nov-2010
A claim was made for the rectification of the register of Town or Village Greens to remove the registration for their land.
Held: The register should be rectified. The user relied on had been neither peaceable nor ‘as of right’ as required. As . .
See Also – Betterment Properties (Weymouth) Ltd v James Carthy and Company Ltd CA 15-Dec-2010
Dispute as to presence of public right of way. . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Appeal from – Taylor v Betterment Properties (Weymouth) Ltd and Another CA 7-Mar-2012
The respondent owned farmland over which public rights of way were claimed. . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 10 July 2022; Ref: scu.249387

Campaign Against Arms Trade v BAE Systems Plc: QBD 26 Feb 2007

Application seeking Norwich Pharmacal relief against the Respondent for disclosure. King J said: ‘The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered.’

Judges:

King J

Citations:

[2007] EWHC 330 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Litigation PRactice

Updated: 10 July 2022; Ref: scu.249241

Sawyer v Atari Interactive Inc: CA 2 Mar 2007

The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
Held: The defendant should be allowed to be heard on the standard practices for management of payment of software royalties. The defendant’s appeal would be allowed to that extent only.

Judges:

Chadwick, Scott Baker, Thomas LJJ

Citations:

[2007] EWCA Civ 170, [2007] BusLR D34

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Aylwen v Taylor Joynson Garrett CA 19-Jul-2001
The claimant sought damages for negligence against solicitors for failing to complete a purchase and to keep her informed of all relevant matters. She sought damages for the loss of the profit she might have made had she purchased the property and . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Pearce v Ove Arup Partnership Ltd and others CA 21-Jan-1999
An English court does not have to refuse an application which sought to apply a foreign copyright law in a claim based on acts committed abroad on the basis that not actionable here. Such restrictions applicable to land actions only: ‘It is, we . .
Cited – Electra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others CA 23-Apr-1999
In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .

Cited by:

Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 10 July 2022; Ref: scu.249373

Clarke v Edinburgh and District Tramways Co: HL 1919

The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case.’ and ‘In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case- in a position, not having those privileges, to come to a clear conclusion that the judge who heard them was plainly wrong.’

Judges:

Lord Shaw of Dunfermline,

Citations:

1919 SC (HL) 35

Jurisdiction:

Scotland

Cited by:

Cited – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Approved – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Approved – Powell v Streatham Manor Nursing Home HL 1935
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 July 2022; Ref: scu.186348

Thomson v Kvaerner Govan Limited: HL 31 Jul 2003

The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient strength to hold his weight. The pursuer’s memory of the events was found to be faulty in several respects.
Held: An appellate court should only replace its own judgment on the facts where the opinion appealed was ‘plainly wrong’. The appeal court here appeared not to have followed that rule. There were difficulties in the pursuer’s explanation, but no other explanation offered itself. Nevertheless, in the absence of evidence, the claimant had to rely upon res ipsa loquitur. That was not available to the pursuer here, and the opinion dismissing his claim was restored.
Lord Hope said: ‘The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked.’ and: ‘It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.’

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry

Citations:

[2003] UKHL 45, 2003 SCLR 765, 2004 SLT 24, [2004] PIQR P7, 2004 SC (HL) 1

Links:

Bailii, House of Lords

Statutes:

Shipbuilding and Shiprepairing Regulations 1960 (SI 1960/1932) 17(1)

Jurisdiction:

Scotland

Citing:

Cited – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – McLaren v Caldwell’s Paper Mill Company Ltd 1973
(Lord Stott, dissenting) A Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct. . .
Approved – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Scott v The London and St Katherine Docks Co CEC 1865
Requirements to set up Res Ipsa Loquitur
The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: . .

Cited by:

Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Litigation Practice

Updated: 10 July 2022; Ref: scu.185423

Regina v London Borough of Hillingdon ex parte McDonagh: Admn 28 Oct 1998

A Local Authority seeking possession under CCR Ord. 24 of land which was occupied by gypsies, had no duty to make enquiries about their housing status. The Department of Environment circular stated only what was good practice, not what was the necessary practice.

Citations:

Times 09-Nov-1998, [1998] EWHC Admin 1015

Links:

Bailii

Statutes:

County Court Rules 1981 Order 24, Gipsy Sites and Unauthorised Camping (Department of Environment 18/24)

Jurisdiction:

England and Wales

Land, Litigation Practice, Housing

Updated: 10 July 2022; Ref: scu.139136

Target Holdings Ltd v Redfern (A Firm) and Another (No 2): ChD 28 Oct 1998

After a subsequent order of appellate court which changed the basis in law of an earlier interim decision in the case it would be right to allow leave to appeal out of time. Interim orders are made to allow court to try the real issues between the parties.

Citations:

Gazette 28-Oct-1998

Jurisdiction:

England and Wales

Litigation Practice

Updated: 10 July 2022; Ref: scu.89713

Panayiotou and Others v Sony Music Entertainment (UK) Ltd: ChD 21 Jul 1993

The rules do not limit the inherent jurisdiction of the court to make requests to foreign courts to ensure the production of documents from abroad. There is no logical reason why the principles by reference to which the court determines whether, and if so to what extent, to require a person who is not a party to the proceedings to produce documents or to give oral evidence should differ according to whether he is in England and Wales or abroad. The principles determinative of an application for an order for the issue of a letter of request in respect of documents or of oral evidence (‘an outgoing request’) were the same as those determinative of an application for an order giving effect to a letter of request received from a foreign court in respect of documents or of oral evidence (‘an incoming request’).

Judges:

Sir Donald Nicholls VC

Citations:

Independent 21-Jul-1993, Gazette 17-Dec-1993, Times 02-Aug-1993, [1994] Ch 142, [1994] 1 All ER 755, [1994] EMLR 229, [1994] 2 WLR 241

Statutes:

Rules of the Supreme Court 39.22

Jurisdiction:

England and Wales

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Flood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 July 2022; Ref: scu.80798

Simantob v Shavleyan: CA 28 Jun 2019

The court as asked as to the extent to which a forbearance to raise a defence later found to be without legal merit can constitute sufficient consideration to support an agreement between the parties.

Judges:

Lord Justice Simon

Citations:

[2019] EWCA Civ 1105

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 10 July 2022; Ref: scu.638836

Bergan v Evans (St Christopher and Nevis): PC 1 Jul 2019

(Court of Appeal of the Eastern Caribbean Supreme Court (St Christopher and Nevis) The Board considered the procedure for the deployment of medical expert evidence in personal injury litigation in St Kitts and Nevis. Specifically, the issue is whether the special provisions about the attaching of medical reports to a statement of claim for personal injuries in the Civil Procedure Rules 2000 (‘the CPR’), and the special provision for admissibility in evidence of written medical reports in section 163 of the Evidence Act 2011, displace what, read on its own, appears to be a general rule, applicable to all expert evidence, that it may not be deployed without the court’s permission, in rule 32.6 of the CPR.

Judges:

Lord Carnwath, Lord Hodge, Lady Black, Lord Briggs, Lord Kitchin

Citations:

[2019] UKPC 33

Links:

Bailii

Jurisdiction:

Commonwealth

Litigation Practice

Updated: 10 July 2022; Ref: scu.639107

Gairdner v Macarthur: HL 1 Mar 1916

The defender Captain A. J. Macarthur appealed to the House of Lords from an interlocutor of July 20, 1915, which, on the whole proof, recalled the Sheriffs’ interlocutors, gave new findings in fact, and a finding in law that the defender was liable to the pursuer in the value of certain articles, with decree for pounds 150. The respondent objected to the competency of the appeal. In an appeal from the Sheriff Court the Court of Session allowed additional proof on the ground that the words ‘if necessary’ in section 72 of the Court of Session Act 1868 meant ‘if necessary for the ends of justice.’
Held that an appeal to the House of Lords, on facts set up after such additional proof, was incompetent, being excluded by 6 Geo. IV, cap. 120, sec. 40.

Judges:

Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1916] UKHL 297, 53 SLR 297

Links:

Bailii

Jurisdiction:

Scotland

Constitutional, Litigation Practice

Updated: 10 July 2022; Ref: scu.630677

James-Bowen and Others v The Commissioner of Police for The Metropolis: QBD 1 May 2015

The claimants were police officers, subject to disciplinary proceedings after a complaint by an arrested terrorist subject that he had been assaulted. The allegations were dismissed, but they now complained that the respondent had not implemented measures to protect them in the course of civil proceedings begun by the arrested suspect against the respondent.

Judges:

Jay J

Citations:

[2015] EWHC 1249 (QB), [2015] CN 746

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – James-Bowen and Others v Commissioner of Police for The Metropolis CA 30-Nov-2016
Appeal against the order of Jay J. striking out the particulars of claim and entering judgment for the respondent, the Commissioner of Police for the Metropolis, in an action brought against him by the four appellants, all of whom were, at the time . .
At first instance – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Police

Updated: 09 July 2022; Ref: scu.546273

Apollo Engineering Ltd v James Scott Ltd: SCS 27 Nov 2012

Application for leave to appeal to the Supreme Court against order refusing permission for a shareholder and director of a party to represent the company.
Held: Leave was refused.

Judges:

Lady Paton, Lord Menzies, Lord Bracadale

Citations:

[2012] ScotCS CSIH – 88

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .

Cited by:

Leave refused – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Company, Litigation Practice

Updated: 09 July 2022; Ref: scu.466319

Westacre Investments Inc v The State-Owned Company Yugoimport SDPR: ComC 21 Apr 2008

Judges:

Tomlinson J

Citations:

[2008] EWHC 801 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Roberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 09 July 2022; Ref: scu.267000

Crucial Music Corporation and Another v Klondyke Management Ag and others: ChD 25 Jul 2007

Whether (i) a warranty given by a third party to a purchaser of intellectual property rights as to the nature of those rights could be an obligation with a place of performance within Article 5(1) of the Lugano Convention and the Judgments Regulation; and (ii) whether the place where damage was sustained as a result of misrepresentation was the place where the contract induced by the misrepresentation was executed and/or completed under Article 5(3) of the Conventions.

Citations:

[2007] EWHC 1782 (Ch), [2008] Bus LR 327

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 09 July 2022; Ref: scu.259425

Sandisk Corporation v Koninklijke Philips Electronics Nv and others: ChD 27 Feb 2007

The claimant sought damages for an alleged abuse of dominant market position by the defendants in its patent licensing. The defendant denied that the court had jurisdiction.
Held: An English court would have jurisdiction in such a case ony if the originating acts occurred here, of the damages substantially happened here.

Judges:

Pumfrey J

Citations:

[2007] EWHC 332 (Ch), Times 27-Feb-2007

Links:

Bailii

Statutes:

EC Treaty 81 82

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice, Jurisdiction, European

Updated: 09 July 2022; Ref: scu.249239

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.
Held: The defendant’s appeal succeeded. Though ‘with some exceptions not relevant to this appeal’, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful.’ The fact that the document had been used later to encourage and be part of mediation proceedings did not make it subject to privilege.
May LJ said: ‘The court will always encourage mediation in an appropriate case. It is well-known and uncontentious in this case that mediation takes the form of assisted ‘without prejudice’ negotiation and that, with some exceptions not relevant to this appeal, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful. In the present case the parties reinforced this by including a provision in their mediation agreement that they would ‘keep confidential all information, whether oral or written or otherwise produced for or at the mediation’. This cannot of course be taken absolutely literally, since it obviously would not apply to documents obviously produced for other purposes which were needed for and produced at the mediation; for example, their building contract or the antecedent pleadings in the proceedings. There was also a note in the agreement to the effect that evidence otherwise admissible would not become inadmissible simply because it was used in mediation. But the general intent of the provision is clear and it accords with the generally understood ‘without prejudice’ nature of mediation.’

Judges:

May, Smith LJJ

Citations:

[2006] EWCA Civ 1866, Times 14-Feb-2007

Links:

Bailii

Statutes:

Civil Procedure Rules 35.12(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Aird and Another v Prime Meridian Ltd TCC 19-Sep-2006
. .

Cited by:

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 – 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.

Litigation Practice

Updated: 09 July 2022; Ref: scu.249094

Kamali v City and Country Properties Ltd: CA 24 Jul 2006

The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was sent. His appeal against judgment in default had been rejected as untimely.
Held: The appeal was dismissed. Service had been even though he had been out of the jurisdiction.

Judges:

May, Neuberger, Wilson LJJ

Citations:

[2006] EWCA Civ 1879, [2007] 1 WLR 1219

Links:

Bailii

Statutes:

Rules of the Supreme Court O10R1, County Court Rules

Jurisdiction:

England and Wales

Citing:

Cited – Rolph v Zolan CA 1993
Postal service of County Court proceedings on an address within the jurisdiction could be good service notwithstanding that the defendant was physically outside the jurisdiction at the time of such service. Referring to RSC O10R1: ‘Thus it is . .
Not preferred – Cadogan Properties Limited v Mount Eden Land Limited CA 29-Jun-1999
If the defendant is outside England, an order for substituted service in England could not be obtained unless permission to serve proceedings out of the jurisdiction has first been obtained. . .
Cited – Godwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
Cited – Chellaram and Another v Chellaram and others (No 2) ChD 16-Apr-2002
One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of . .
Cited – Fairmays (A Firm) v Palmer ChD 31-Jan-2006
The defendant appealed against a decision not to set aside a judgment obtained against him by default. Whilst he retained a property in England, he lived in Ethiopia. The claim was served at the address in England, but was redirected to another . .
Cited – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 July 2022; Ref: scu.249064

West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor): HL 21 Feb 2007

A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement.
Held: English authority and European thought differed, and the matter should be referred to the European Court of Justice. The rule preventing such orders as regards full court proceedings did not apply, since the seat of arbitration was a matter of choice by the parties. These proceedings were to protect the contractual right to have the dispute determined by arbitration, and fell outside the Regulation and cannot be inconsistent with its provisions. An arbitration agreement lies outside the system of allocation of court jurisdictions which the Regulation creates: ‘the most important consideration is the practical reality of arbitration as a method of resolving commercial disputes. People engaged in commerce choose arbitration in order to be outside the procedures of any national court. They frequently prefer the privacy, informality and absence of any prolongation of the dispute by appeal which arbitration offers. Nor is it only a matter of procedure. The choice of arbitration may affect the substantive rights of the parties, giving the arbitrators the right to act as amiables compositeurs, apply broad equitable considerations, even a lex mercatoria which does not wholly reflect any national system of law. The principle of autonomy of the parties should allow them these choices. ‘ The ability to make such an order was itself an advantage of arbitration.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Mance

Citations:

[2007] UKHL 4, [2007] ILPr 20, [2007] 1 Lloyd’s Rep 391, [2007] 1 All ER (Comm) 794, (2007) 23 Const LJ 458, [2007] ArbLR 61

Links:

Bailii, HL

Statutes:

EC Regulation 44/2001, Lugano Convention

Jurisdiction:

England and Wales

Citing:

Appeal from – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’) ComC 21-Mar-2005
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords. . .
Cited – Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Association Company Ltd CA 2-Dec-2004
. .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Cited – Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others (Judgment) ECJ 17-Nov-1998
Applications under the Brussels Convention for Interim Measures were capable of being heard by courts notwithstanding a clause referring disputes under the contract in issue exclusively to arbitration. Even in the case of Article 24 of the Brussels . .
Cited – Pena Copper Mines Ltd v Rio Tinto Co Ltd 1911
The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad. . .
Cited – Erich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .

Cited by:

Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
See Also – West Tankers Inc v Ras Riunione Adriatica Sicurta Spa and Another ComC 2-Oct-2007
. .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Lists of cited by and citing cases may be incomplete.

Arbitration, European, Litigation Practice

Updated: 09 July 2022; Ref: scu.248962

BBC Worldwide Ltd v Bee Load Ltd (T/A Archangel Ltd.): ComC 8 Feb 2007

The parties had contracted for the exploitation of recordings of live music performances held by the claimant. Summary judgment was sought.
Held: Where, as here, the court was already in possession of all the evidence which might be presented at a full trial, that was one factor in favour of considering a summary disposition.
Toulson LJ said: ‘This raises the question how the court should proceed where the issue raised is a pure point of construction which can be as well determined on a summary application as on a full trial (or a trial of preliminary issues), because it will not be affected by evidence. It seems to me that if at the end of the argument the court comes to a clear view as to the correct construction, the court has jurisdiction to grant summary judgment under CPR 24.2 on the basis that a trial would have no realistic prospect of causing it to reach a different judgment.’

Judges:

Toulson LJ

Citations:

[2007] EWHC 134 (Comm)

Links:

Bailii

Cited by:

Cited – Kingerlee Holdings Ltd v Dunelm (Soft Furnishings) Ltd ChD 21-Jan-2013
There had been an agreement for a lease of a property on a commercial estate yet to be built. The parties disagreed when the tenant was to be obliged to take the lease. The proposed landlord sought summary judgment.
Held: The court had all the . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 09 July 2022; Ref: scu.248398

Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters: CA 7 Feb 2007

The claimant had been insured under a business interruption insurance policy issued by the respondent defendaants. A claim had arisen, and had been settled, but the caimant said that the parties had mistaken the basis of the policy and had settled it on the basis that it was on a ‘gross profits basis’ which was subjet to averaging. In fact it was a ‘declaration-linked’ policy not subject to averaging. The mistake was, the claimants said, the result of a misrepresentation by the underwriters, or at least as a common mistake. The claim had been refused by the judge. The claimants now appealed.
Held: The appeal failed.

Judges:

Ward, Neuberger, Wilson LJJ

Citations:

[2007] 1 CLC 164, [2007] EWCA Civ 57, [2007] Lloyd’s Rep IR 460

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters Subscribing Under Policy No. 019057/08/01 ComC 29-Mar-2006
The court was asked whether the Claimants were entitled on the grounds of mistake and misrepresentation to re-open an insurance claim which they compromised with the Defendant underwriters. The claimant said that the it had taken out with the . .

Cited by:

Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 09 July 2022; Ref: scu.248384

Swindale v Forder: CA 31 Jan 2007

In ancillary relief proceedings, the matrimonial home had been transferred to the wife subject to a charge in favour of the husband’s partner not to be enforced until a certain date. That partner now sought the early sale of the property sayng that the court had also said this had been done to provide a home for the four children, but that those children now resided with the husband, and the order whould be amended under the slip rule.
Held: The judge had asked counsel to draft an order providing that ‘period of deferment will be for 10 years or until the wife remarries (or cohabits in circumstances akin to marriage) or the house is no longer required as a home.’ This did not say as a home for the children. The court at first instance had amended this to add ‘for the petitioner or her children or any of them.’ Other parts of the original judgment suggested that the order might extend only for so long as the house was required for the children. The order should now be amended to read that the charge should be postponed until the house was no longer required ‘as a home for the petitioner and at least one of the children’.

Judges:

Ward LJ, Wilson LJ

Citations:

[2007] EWCA Civ 29

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barder v Caluori HL 2-Jan-1987
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 09 July 2022; Ref: scu.248322

Hachette Filipacchi Presse Sa v S Aprotex International (Proprietary) Ltd: ChD 24 Jan 2007

Both parties used the name ‘Elle’ in their respective products, a women’s magazine, and handknitting yarns. They disputed the registration of a trade mark for the latter in the UK.
Held: The court endorsed the continuing applicabiity of the guidelines in Reef when a court was asked to upset a decision of a lower but specialist tribunal.

Judges:

Sir Andrew Morritt C

Citations:

[2007] EWHC 63 (Ch)

Links:

Bailii

Statutes:

Trade Marks (Proof of Use etc) Regulations 2004, Trade Marks Act 1994 5(2) 5(3)

Jurisdiction:

England and Wales

Citing:

Endorsed – Bessant and others v South Cone Incorporated; in re REEF Trade Mark CA 28-May-2002
The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was . .

Cited by:

Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 09 July 2022; Ref: scu.248252

Re G, S and M (Wasted Costs): FD 20 Sep 1999

The court discussed the duty of counsel and their instructing solicitors in proceedings under the Children Act 1989 to ensure that expert witnesses are kept up to date with events in the case; and, in particular, that before expert witnesses are called to give oral evidence, they have been sent and have read all relevant documents, particularly those which have emerged since their reports were written.

Judges:

Wall J

Citations:

[1999] EWHC Fam 828, [2000] 1 FLR 52, [1999] 4 All ER 371, [1999] 3 FCR 303, [2000] Fam 104, [2000] 2 WLR 1007, [2000] Fam Law 24

Links:

Bailii

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice, Children

Updated: 09 July 2022; Ref: scu.263378

Dadourian Group International Inc and others v Simms and others: CA 20 Dec 2006

The court considered the exercise by the court of its discretion to release a party who has obtained a freezing order from his undertaking not to use information obtained from the party against whom the freezing order is made in contempt proceedings against that party.
Held: There was no general principle which required there to exist exceptional circumstances before a party who had come into possession of information as a result of the execution of a world wide freezing order could be released from his undertaking not to use that information for collateral purposes. The court should provide significant protections to a party subjected to cross examination as to his assets for an asset freezing order, but the court should not decline to assist a party requiring permission to use that information for contempt proceedings necessary to protect its own proper interests.

Judges:

Sir Andrew Morritt, Chancellor, Lady Justice Arden and Lord Justice Longmore

Citations:

[2006] EWCA Civ 1745, Times 17-Jan-2007

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dadourian Group Int Inc v Simms and others (No 1) CA 11-Apr-2006
The court was asked to consider how it should exercise its discretion to order a world-wide asset freezing order.
Held: It dismissed the appeal in this case, but took the opportunity to provide eight guidelines for the way in which the . .
Appeal from – Dadourian Group International Inc and others v Simms and others ChD 24-Nov-2006
The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 July 2022; Ref: scu.247482

Toth v Jarman: CA 21 Nov 2006

Citations:

[2006] EWCA Civ 1625

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 July 2022; Ref: scu.246991

De Beauville v Swycher and Co and Another: 22 Nov 1999

Citations:

Unreported 22 November 1999

Jurisdiction:

England and Wales

Cited by:

Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 July 2022; Ref: scu.414953

Richardson v Watson and Another: CA 6 Dec 2006

The claimant’s husband died in a road traffic accident. The other driver was not insured. The claimant began an action against the MIB, but failed first to give the necessary notice. She now appealed an order preventing her discontinuing the action so as to allow service of the necessary notice and re-issue out of time as an abuse of process.
Held: The aim of the requirement for notice was not to work as a form of limitation, but to prevent a party commencing an action and obtaining judgment by default.

Judges:

Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Scott Baker and Lord Justice Leveson

Citations:

[2006] EWCA Civ 1662, Times 13-Dec-2006

Links:

Bailii

Jurisdiction:

England and Wales

Road Traffic, Personal Injury, Litigation Practice, Limitation

Updated: 08 July 2022; Ref: scu.246804

Revitt and others v Director of Public Prosecutions: Admn 17 Jul 2006

Short adjournment.

Judges:

Lord Phillips of Worth Matravers LCJ, Cresswell J

Citations:

[2006] EWHC 2074 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Adjourned from – Revitt, Borg and Barnes v Director of Public Prosecutions Admn 8-Sep-2006
The defendants appealed against refusal of leave to withdraw their pleas of guilty. They argued that the current practice infringed their human rights.
Held: The magistrates had been correct not to allow the defendants to withdraw their pleas. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 July 2022; Ref: scu.246749

Manning v Stylianou: CA 26 Oct 2006

Where an appeal is against a judge’s evaluation of the facts, the Court of Appeal should consider the evaluation in the same way it would approach an appeal against the exercise of discretion.

Judges:

Waller LJ

Citations:

[2006] EWCA Civ 1655

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 08 July 2022; Ref: scu.246760

Radu v Houston and Another: CA 22 Nov 2006

An order for security for costs had been made against the defamation claimant, supported by an unless order. Security not having been provided, judgment was entered by default.
Held: Where an unless order was made, a generous time should be allowed for compliance. It was not intended as a weapon, and even after judgment by default, if the party complied with the order within a short time thereafter, the court could consider re-opening the case. Each case must be dealt with according to its circumstances. There was no general rule.

Judges:

Waller LJ VP, Keene LJ, Carnwath LJ

Citations:

[2006] EWCA Civ 1575, Times 01-Jan-2007, [2007] 5 Costs LR 671, [2007] CP Rep 11

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Allen v Bloomsbury Publishing Ltd and Another CA 14-Jul-2011
The claimant appealed against an order requiring him to deposit a substantial sum as security for costs for the bringing of his action for copyright infringement in respect of the Harry Potter series of books.
Held: The appeal failed. The . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 08 July 2022; Ref: scu.246347

X and Y v Persons Unknown: QBD 8 Nov 2006

The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to obey it. Associated Newspapers had agreed to an undertaking, but then were served with an injunction in wider terms.
Held: The court considered what might be considered to be public about a couple’s relationship: ‘if someone asks ‘How’s married life treating you?’ and the response is ‘Fine’, that does not mean that the public is entitled to a ring-side seat when stresses and strains emerge (as happens in most relationships from time to time). It is disingenuous to pretend otherwise. Ordinary polite ‘chit chat’ of this kind is qualitatively different from volunteering to release private information for public consumption. ‘ At the same time, some facts about a separation have no privacy, such as that the couple are living apart. The order therefore scheduled the kinds of facts about the couple which were to be respected as private.
As for disclosure: ‘If and in so far as the exigencies of the occasion permit, anyone applying for an injunction must comply with his or her obligation of full and frank disclosure. In cases of this kind, that will generally involve a search of the internet or previous publications relating to the same category of information now sought to be protected. The court will need all the assistance available, for the purpose of deciding ‘likelihood’ of success, and in particular for making a preliminary judgment as to whether ‘the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential’.’ In this case, though the investigation might be criticised the parties should not be refused injunctive relief. A public domain proviso should be added. Attempts should also be made to trace the wrongdoers so that the litigation should not go to sleep leaving a permanent injunction.

Judges:

Eady J

Citations:

[2006] EWHC 2783 (QB), [2007] EMLR 290, [2007] 1 FLR 1567

Links:

Bailii

Statutes:

Human Rigts Act 1998 12

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Newspaper Publishing plc CA 1987
The court explained the common law basis of the law of contempt of court. Lloyd LJ said: ‘Since the test of contempt is not a breach of the order but interference with the administration of justice, it follows that at common law a contempt may be . .
Cited – R (Mrs) v Central Independent Television Plc CA 17-Feb-1994
The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Venables and Thompson v News Group Newspapers and others QBD 8-Jan-2001
Where it was necessary to protect life, an order could be made to protect the privacy of individuals, by disallowing publication of any material which might identify them. Two youths had been convicted of a notorious murder when they were ten, and . .
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Cited – Halford v The United Kingdom ECHR 25-Jun-1997
halford_ukECHR1997
The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – South Cambridgeshire District Council v Persons Unknown CA 17-Sep-2004
The council appealed refusal of an order against persons unknown with regard to preventing breaches of planning control at a specific site.
Held: An injunction could properly be granted against persons unknown ‘causing or permitting hardcore . .
Cited – A v B plc and Another QBD 10-Sep-2001
The applicant, a professional footballer, sought an injunction to prevent the defendant newspaper and the woman second defendant from publishing or disclosing details of a sexual relationship between them. He succeeded. There was no public interest . .
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
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 – Jockey Club v Buffham QBD 13-Sep-2002
A court had issued a final order with an injunction against the respondent against revealing matters becoming known to him during his employment by the claimant. The BBC sought a variation to allow it to broadcast material based upon that documents . .
Cited – Redwing Ltd v Redwing Forest Products Ltd 1947
The court was asked as to an alleged breach of an undertaking given by the defendant not to advertise or offer for sale any products as ‘Redwing’ products so as to be liable to lead to the belief that they were the plaintiff’s.
Held: The court . .
Cited – Attorney-General v Greater Manchester Newspapers Ltd QBD 4-Dec-2001
The defendant newspaper had published facts relating to the whereabouts of two youths protected by injunction against the publication of any information likely to lead to their location. The injunction was not ambiguous or unclear. ‘Likely’ did not . .

Cited by:

Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 08 July 2022; Ref: scu.245980

O’Byrne v Aventis Pasteur MSD Ltd: QBD 20 Oct 2006

The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was sought to substitute the actual manufacturer Aventis Pasteur SA.
Held: The substitution should be made. The sole requirement allowing the exercise of a discretion was that the substitution was necessary for the determination of the original action. When exercising the discretion the Court had to have regard to the purpose of the Council Directive underlying the 1967 Act. In this case that meant that only a producer should be substituted, and such substitution should not be done lightly, and the applicable limitation period had to be borne in mind. In this case the substitution should be allowed.

Judges:

Teare J

Citations:

Times 20-Nov-2006, [2006] EWHC 2562 (QB)

Links:

Bailii

Statutes:

Consumer Protection Act 1987, Limitation Act 1980 35

Jurisdiction:

England and Wales

Citing:

At ECJ – Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .

Cited by:

Appeal from – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
At QBD – OB v Aventis Pasteur SA HL 11-Jun-2008
The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against . .
See also – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
See Also – Aventis Pasteur v O’Byrne (Environment And Consumers) ECJ 2-Dec-2009
Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original . .
See Also – O’Byrne v Aventis Pasteur Sa SC 26-May-2010
The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 08 July 2022; Ref: scu.245956

Oxford University v Webb: QBD 13 Oct 2006

Action against animal rights protester for protection against alleged threats againt bio-medical research centre.

Judges:

Irwin J

Citations:

[2006] EWHC 2490 (QB)

Links:

Bailii

Statutes:

Civil Procedure Rules 19.6

Jurisdiction:

England and Wales

Cited by:

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.

Litigation Practice

Updated: 08 July 2022; Ref: scu.245957

AB and others v British Coal Corporation and others: CA 19 Oct 2006

A collective compensation agreement, which required affected persons to submit their claims, along with medical evidence, through authorised solicitors to be compensated on the basis of agreed damages formula, was introduced.

Judges:

Pill LJ, Rix LJ, Arden LJ

Citations:

[2006] EWCA Civ 1357

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – AB and others v British Coal Corporation and Coal Mining Contractor Defendants QBD 22-Jun-2004
. .
See Also – AB and others v Department of Trade and Industry S/A British Coal Corporation CA 21-Dec-2005
. .

Cited by:

See Also – AB and others v British Coal Corporation and Another ComC 18-May-2007
. .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) (Costs) QBD 27-Jun-2007
. .
See Also – AB and others v British Coal Corporation (Rulings Appended) QBD 13-Aug-2007
. .
See Also – AB and others v British Coal Corporation ComC 15-Jan-2008
. .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 08 July 2022; Ref: scu.245405

Practice Note (Anonymisation In Asylum and Immigration Cases In the Court of Appeal): CA 31 Jul 2006

From October 2006, the names in cases involving asylum appeals will be anonymised, with a two character code, the country name, and a serial number as necessary. This would accord with practice in other European jurisdictions and would assist if eventually an applicant came to return to his home country.

Citations:

Times 24-Aug-2006, [2006] EWCA Civ 1359

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Immigration

Updated: 08 July 2022; Ref: scu.245404

Almeida v Opportunity Equity Partners Ltd: PC 3 Oct 2006

(Cayman Islands) The Board was asked as to whether there had been a ‘fundamental failure of justice’ in the trial of the action, and as to the principles to be applied on ordering a new trial by judge alone.

Judges:

Lord Hope of Craighead, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 44

Links:

Bailii

Commonwealth, Litigation Practice

Updated: 08 July 2022; Ref: scu.245387

ASM Shipping Ltd of India v TTMI Ltd of England: CA 16 Oct 2006

The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Held: A decision that a right has been waived under section 73 is a decision under section 68 and thus unappealable if the judge has refused permission. It had been argued that a decision as to waiver was not a decision on the asserted irregularity. Longmore LJ (referring to Cetelem): ‘That case is very different from the present case. Here there is no doubt that Morison J had jurisdiction either to accede to the application or to refuse it. Whichever way the decision went, it was still a decision under section 68 of the Act and a refusal of permission to appeal was likewise a decision under the section. It cannot, therefore be challenged by way of appeal even if the decision is wrong or, even, obviously wrong. The fact that waiver (or indeed estoppel) can be said to operate as a defence to a prima facie entitlement is, in our view, nothing to the point. A decision to refuse relief (for whatever reason) is still a decision under section 68 just as much as a decision to grant relief would have been, if the decision had gone the other way.’

Citations:

[2006] EWCA Civ 1341

Links:

Bailii

Statutes:

Arbitration Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Appeal from – ASM Shipping Ltd of India v TTMI Ltd of England ComC 19-Oct-2005
The court upheld an objection to one member of the arbitration panel for apparent bias, but refused to set aside a preliminary decision of the panel. . .
See Also – TTMI Ltd of England v ASM Shipping Ltd of India ComC 23-Nov-2005
. .

Cited by:

See Also – ASM Shipping Ltd of India v TTMI Ltd of England Admn 20-Apr-2007
Application to remove arbitrators. . .
Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
See Also – ASM Shipping Ltd of India v TTMI Ltd of England ComC 20-Apr-2007
. .
See Also – ASM Shipping Ltd v Harris and others ComC 28-Jun-2007
Objection was made the panel selected to undertake an arbitration. It was said that one member of the panel had been found to be subject to proper objectin for an apparent bias, and that the remaining panel members should recuse themselves for . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 07 July 2022; Ref: scu.245343

Casey v Cartwright: CA 5 Oct 2006

There had been a low impact traffic accident, with conflicting evidence as to the damages suffered and capable of beingcaused by such an accident. The court considered the correct practice for the court in allowing additional expert evidence in small claims.
Held: In view of the controversy as to the possible injuries to be suffered, a defendant wishing to challenge an expert should serve the claimant with appropriate notice that it wished to challenge the evidence. The court should then, if the issues are properly raised allow independent examination of the claimant.

Judges:

Lord Justice Keene, Lord Justice Dyson and Lady Justice Hallett

Citations:

[2007] 2 All ER 78, [2006] EWCA Civ 1280, Times 10-Oct-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kearsley v Klarfeld CA 6-Dec-2005
The defendants had suggested three doctors to examine the claimant. The claimants suggested a Dr P to prepare a report, but when asked for his CV instructed him anyway. The defendant’s unqualified motor examiner said the accident had occurred at . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Personal Injury

Updated: 07 July 2022; Ref: scu.245268

Balmoral Group Ltd v Borealis (UK) Ltd and others: ComC 23 Aug 2006

Whether court had jurisdiction to hear application for permission to appeal. Clarke J said: ‘the rules provide for the lower court to be able to grant permission at the hearing at which the decision to be appealed was made. On the facts of this case, the hearing at which the decision sought to be appealed was made was, as it seems to me, concluded on 25th July. Whilst it would have been open to Balmoral to apply for an adjournment of that hearing so as to enable them to make an application for permission to appeal before it ended, it did not do so. Since that hearing is over I regard myself as no longer able to grant permission. The rules provide a would-be appellant with a choice. He can apply to the lower court when the decision is made. If he needs more time he can ask for an adjournment of the hearing at which the decision is made in order to apply for permission on the date to which that hearing is adjourned. His subsequent application will then, by definition, be made at the adjournment of that hearing. If he does neither he must apply to the appeal court.’

Judges:

Christopher Clarke J

Citations:

[2006] EWHC 2228 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Balmoral Group Ltd v Borealis [UK] Ltd and others ComC 25-Jul-2006
The claimants manufactured and sold storage tanks. They sought substantial damages after chemical materials purchased from the defendants to help bond the tanks failed. . .

Cited by:

Cited – In re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 July 2022; Ref: scu.245194

Aird and Another v Prime Meridian Ltd: TCC 19 Sep 2006

Citations:

[2006] EWHC 2338 (TCC)

Links:

Bailii

Citing:

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 by:

Appeal from – 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.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 07 July 2022; Ref: scu.245200

Islamic Republic of Pakistan v Zardari and others: ComC 6 Oct 2006

The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings on the defendant companies abroad, outside a Lugano Convention country.
Held: The claim should proced. ‘There are plainly serious issues here which it is reasonable for the court to try. There is a strong case that the refurbishment of the Rockwood Estate can be traced to corrupt payments.’ The extended notion of a trust set out in Nabb Brothers was incorrect.

Judges:

Lawrence Collins J

Citations:

[2006] EWHC 2411 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Grant v Gold Exploration and Development Syndicate Ltd CA 1900
Secrecy is a badge of fraud. . .
Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – In Re Banco Nacional De Cuba ChD 7-Jun-2001
Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered . .
Cited – Agip (Africa) Ltd v Jackson ChD 1990
The reference to ‘any wrongful act or omission’ in section 10 is not limited to torts or even to wrongs which were actionable at common law. ‘In paying or collecting money for a customer the bank acts only as his agent. It is otherwise, however, if . .
Cited – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
Criticised – Nabb Brothers Ltd v Lloyds Bank International (Guernsey) Ltd ChD 18-Mar-2005
It is not necessary that all the acts giving rise to liability occurred within the jurisdiction. . .
Cited – Nycal (UK) Ltd v Lacey 1994
. .
Cited – Mahesan v Malaysia Government Officers Co-operative Housing Society PC 1978
The appellant, the director and employee of a housing society was bribed by a real estate agent, one Manickam, and the appellant then caused the society to buy land at an overvalue. The agent was sued for money had and received (for the amount of . .
Cited – Metal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 27-Jan-1989
The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .
Cited – ISC Technologies Limited v Guerin 1992
A fraud was alleged by the defendant against the arms manufacturer Ferranti.
Hoffman J said: ‘The question [on an application under Ord. 12 r. 8(1)(c) to discharge an order giving leave to serve a writ out of the jurisdiction] is . . whether . .
Cited – Carvill America Incorporated and Another v Camperdown UK Ltd. and others CA 27-May-2005
The claimant must bring evidence to establish that he has a cause of action which can be tried is that his claim has ‘a reasonable prospect of success,’ and this threshold is the same as if the claimant were resisting an application by the defendant . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Limit (No 3) Ltd and others v PDV Insurance Company Ltd QBD 7-Nov-2003
When considering allowing proceedings here, the court must consider the the effect on related proceedings in another jurisdiction. . .
Cited – Banque Indosuez v Ferromet Resources 1993
There is a general principle in favour of giving judicial assistance to foreign insolvency proceedings by preventing their disruption by the actions of individual creditors. . .
Cited – De Molestina v Ponton 2002
The claimants sought partial rescision of agreements of compromise of disputes within the etsate on the basis that agreement had been obtained by fraud.
Held: Recission of part only of an agreement was not possible. . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – Polly Peck International Plc v Nadir and Others CA 17-Mar-1993
For a bank to be sued for breach of trust after receipt of funds, it was not necessary to show that the bank knew of the fraud, but rather that it knew the funds were trust funds, and that they were being misapplied. A Mareva injunction should be . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Attorney General for Hong Kong v Reid and Others PC 24-Nov-1993
Principalhas proprietary interest in Trust assets
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
Cited – Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran HL 15-Oct-1993
A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question . .
Cited – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – Amin Rasheed Shipping Corp v Kuwait Insurance Co HL 1983
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
Cited – Daraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others ChD 26-Mar-2004
The court was asked whether Lister and Co v Stubbs 45 ChD 1, a decision of the Court of Appeal, was binding on him or whether he could apply the Privy Council’s decision in Attorney General for Hong Kong v Reid
Held: On the facts of the case . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – ISC Technologies Limited v Radcliffe 7-Dec-1990
It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and . .

Cited by:

Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 07 July 2022; Ref: scu.245196

Nelson and Another v Clearsprings (Management) Ltd: CA 22 Sep 2006

The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the court to exercise its discretion or whether he was entitled as of right after a trial, rather than judgment in default.
Held: Sir Anthony Clarke MR said: ‘The essential question is whether this is a situation to which CPR39(3) applies. So far as we are aware there is no case in which the rule has been held to apply where the defendant has not been served with proceedings in accordance with the CPR and is ignorant of them
. . We do not think that the draftsman of the CPR can have intended to introduce what the editors call the more stringent requirements of rule 39.3(5) into applications to set aside judgments irregularly obtained, in the sense of being obtained without service of the claim form in accordance with the rules. In our judgment, the whole of rule 39.3 contemplates a trial in the absence of a party who has been served under the rules or in respect of whom service has been dispensed with.’ That did not amount to a finding that a party was entitled to have judgment set aside as of right. If the claimant can show that there is no real prospect of his claim failing he should be able to retain his judgment. However a judgment might almost always be set aside in such circumstances. That should happen here.

Judges:

Sir Anthont Clarke MR, Brooke, Waller LJJ

Citations:

[2006] EWCA Civ 1252, Times 05-Oct-2006, [2007] 1 WLR 962, [2007] 2 All ER 407

Links:

Bailii

Statutes:

Civil Procedure Rules 39.3(5)

Jurisdiction:

England and Wales

Citing:

Cited – White v Weston CA 1968
A county court summons was purportedly served on the defendant at a previous address and he did not receive it.
Held: The court treated the case as one in which the defendant had not been duly served with process. Judgment was given against . .
Cited – Akram v Adam CA 30-Nov-2004
The defendant sought to set aside a possession order made where he did not know of the proceedings.
Held: The judge had a discretion, not a duty, to set aside a possession order made in such circumstances. Human rights law required the court . .
Cited – London Borough of Hackney v Driscoll CA 16-Jul-2003
The defendant sought to set aside judgment entered in his absence.
Held: The right of a defendant to have set aside a judgment where he had not known of the proceedings did not necessarily apply where, as here, he had attended one hearing, but . .
Cited – Al-Tubaishi v Aung CA 8-Jun-1994
If solicitors for one party know that the party being served is out of country, then service at his last known address is irregular. The procedure which allows deemed service is to be followed strictly. Stuart-Smith LJ: ‘Whether it is entirely right . .
Cited – Gold Ocean Assurance Ltd v Martin 1990
. .
Cited – Willowgreen Ltd v Smithers CA 16-Feb-1994
Service was insufficient if the papers sent to an address at which defendant was never in fact present. A summons to be served by post had to go to an address where the person has a continuing presence. The case of White v West was applied . .
Cited – Thomas Bishop Ltd v Helmville Ltd CA 1972
The court considered what was to be understood by a judgment which had been regularly obtained. Orr LJ (dissenting): ‘the point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given . .
Cited – Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Cited – Regency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .
Cited – Hashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Vinos v Marks and Spencer plc CA 2001
The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be . .

Cited by:

Cited – Tombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9) CA 17-Dec-2008
The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the . .
See Also – Nelson and Another v Clearsprings (Management) Ltd CA 20-Dec-2006
. .
Cited – Forcelux Ltd v Binnie CA 21-Oct-2009
Forcelux and Mr Binnie were the landlord and tenant of a flat in Lincoln. Under the lease, the tenant was obliged to pay ground rent and other charges. The lease contained a forfeiture provision in the event of non-payment of rent or charges. Mr . .
Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 July 2022; Ref: scu.245068

Weston v Dayman: CA 7 Jun 2006

The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power to vary or revoke an order. It was also argued that the variation could be made under an express provision which gave ‘liberty to apply’.
Held: Arden LJ relied on Ropac for the proposition that, even when the parties had come to a consent order, there was an exceptional jurisdiction under which the court could still vary the order. She continued: ‘I will proceed on the basis (without deciding the point) that CPR 3.1(7) applies to paragraph 10 of the order of 23 January 2003. I would accept that the Court should accede to an application for variation where it is just to do so but in my judgment one of the aspects of justice is that a bargain freely made should be upheld. Mr Weston clearly obtained benefits under the order of 23 January 2003. It may well be that those benefits are not as great as he thought, but that is not a matter for the court. In those circumstances I do not consider it would be right for this court to exercise its discretion to vary the order as sought.’

Judges:

Arden LJ, Brooke LJ VP, Wall LJ

Citations:

[2006] EWCA Civ 1165

Links:

Bailii

Statutes:

Civil Procedure Rules 3.1(7)

Jurisdiction:

England and Wales

Citing:

Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .

Cited by:

Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 07 July 2022; Ref: scu.244459

Environment Agency v Lewin Fryer and Partners: TCC 6 Jul 2006

The defendants had started but abandoned a request against third parties, and had to pay their costs. It now sought those and its own costs from the claimant, saying that the abortive application would have been unnecessary had the claimant complied with its own disclosure obligations. The claimant said the court did not have jurisdiction to make such an order.
Held: The court had the power to make such an order, but only to the extent that the defendants’ action had been reasonable, and the result would be reasonable and appropriate. As regards the claimant’s main contractor, many of the documents were within the claimant’s control as the instructing client. The application by the defendant had been delayed as long as it could, and the claimant had not been open about its own discussions with its contractors about disclosure. As against subcontractors, the claimant did not have the same control, and a costs order against the claimants was not appropriate in those respects.

Judges:

peter Coulson QC J

Citations:

[2006] EWHC 1597 (TCC), (2006) 22 Const LJ 574

Links:

Bailii

Statutes:

Civil Procedure Rules 31 44.3

Litigation Practice, Costs, Construction

Updated: 07 July 2022; Ref: scu.244135

Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another: CA 28 Jul 2006

The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in Sudan, now appealed an order that they provide security for costs, seeking to adduce additional evidence of their means.
Held: ‘the court, once satisfied that the case is one in which the claimant ought to put up security for the defendant’s costs before continuing with his action, is going to find itself in one of two situations. Either it will be satisfied that it probably has a full account of the resources available to the claimant, in which case it can calculate with reasonable confidence how much the claimant can afford to put up; or it will not be satisfied that it has a full account, and so cannot make the calculation. Does it follow in the latter situation that the court must go straight to the amount sought by the defendant and, having pruned it of anything which appears excessive or disproportionate, fix that as the security? Or is there a middle way – for example to set an amount which represents the court’s best estimate of what the claimant, despite having been insufficiently candid, can afford?
In our judgment there is such a power, but it resides in the court’s discretion rather than in legal principle. In the second situation we have postulated, the requirements of the law have been exhausted: what remains is to set a suitable sum. This classically is where discretion fills the space left by judgment: the court has a choice of courses, none of which it can be criticised for taking provided it makes its election on a proper factual basis uninfluenced by extraneous considerations. ‘

Judges:

Sedley LJ, Keene LJ, Longmore LJ

Citations:

Times 28-Aug-2006, [2006] EWCA Civ 1123

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Electra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others CA 23-Apr-1999
In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly . .
Cited – Banks and Another v Cox and Another CA 17-Jul-2000
The court considered the principles of admitting new evidence on appeal after the introduction of the new rules. Moritt LJ: ‘In my view the principles reflecting in the rules in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application . .
Cited – Bubbins v United Kingdom ECHR 17-Mar-2005
The deceased had returned home drunk, and climbed in through a window. His girlfriend saw only his legs and reported an intruder to the police. He refused to identify himself when challenged by the police and on pointing a gun from the window he was . .
Cited – Hamilton v Al Fayed (No 4) CA 2001
The court considered the applicability of cases before the introduction of the new rules on the exercise of a judge’s discretion.
Held: The old cases ‘remain powerful persuasive authority’. . .
Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Thune v London Properties Limited CA 1990
The court considered the applicability of the principles in Ladd v Marshall to an appeal from an interlocutory order being an application for security for costs.
Held: The application to admit fresh evidence was refused. Bingham LJ: ‘There is . .
Cited – Keary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Cited – Brimko Holdings Limited v Eastman Kodak Company 2004
The defendant sought security for costs. The court considered the burden of proof in such a claim: ‘. . the court should not restrict its evaluation of the ability of a claimant to provide security to the means of the claimant itself. If the . .
Cited – Nasser v United Bank of Kuwait CA 11-Apr-2001
The claimant, a foreign resident, alleged that her jewels had been stolen from a deposit box while in possession of the defendants. The defendants sought security for costs.
Held: An order for security may not legitimately be based on the bare . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – Kufaan Publishing Ltd v Al-Warrak Publishing Ltd CA 1-Mar-2002
. .
Cited – Buttes Oil and Gas Co v Hammer (No 3) HL 1982
The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – Jeyaretnam v Mahmood 21-May-1992
For the purpose of an application to discharge an order for service on a defendant outside the jurisdiction, the court declined to evaluate allegations of lack of independence or impartiality in the defendant’s home country of Singapore on the . .
Cited – Skrine and Co (a Firm) and others v Euromoney Publications plc and others QBD 10-Nov-2000
The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of . .
Appeal from – Al-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 07 July 2022; Ref: scu.243991

Hughes v Carratu International Plc: QBD 19 Jul 2006

The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had returned all papers to solicitors.
Held: The proposed respondents had not been fully candid, and a sufficient case was established to justify disclosure. ‘ there is reason to believe that there has been a serious breach of the criminal law. The enquiry agents who are suspected of that breach and who have been charged with it, appear to have been under the impression that the Respondent (and so presumably the Respondent’s client, the law firm), would not regard as unwelcome the receipt of the information which was obtained by those criminal means. This is not, apparently an isolated case. I infer that the law firm are aware of the present proceedings because I have been told that they asked for the file in order to protect their client’s claim to privilege, but they have not indicated any stance that they might be adopting towards the making of the order insofar as it might involve disclosure of their own identity. There has been no explanation as to how the enquiry agents can have been under so serious a misunderstanding as to the wishes of the Respondent that all information be obtained lawfully, given the Respondent’s repeated declarations of the importance they attach to compliance with the law. For these reasons I shall make the whole of the order sought by the Applicant. ‘

Judges:

Tugendhat J

Citations:

[2006] EWHC 1791 (QB)

Links:

Bailii

Statutes:

Data Protection Act 1998, Civil Procedure Rules 31.16

Jurisdiction:

England and Wales

Citing:

Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – Black v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
Cited – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Lists of cited by and citing cases may be incomplete.

Information, Litigation Practice

Updated: 07 July 2022; Ref: scu.244008

Re Birchall; Wilson v Birchall: CA 1880

In the administration of his estate the widow of the deceased took out a summons asking for a declaration that a large amount of personal property was held by the deceased as trustee for her and so did not fall into his estate. A compromise was suggested dividing the chattels between the widow and the estate. Counsel for infant beneficiaries refused to assent, the guardian being opposed to the compromise.
Held: A court cannot force a litigation friend to enter into a compromise against his wishes.
Jessel MR said: ‘This is not approving of a compromise, but compelling one. What jurisdiction has the court to do so? . . In my opinion the course which has been taken in this case is quite unprecedented. The court can approve of a compromise on behalf of infants, but it cannot force one upon them against the opinion of their advisers. The practice . . has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so . . This is the first time that I have known a compromise enforced upon infants, against the opinion of their guardians or next friend and of their legal advisers, and I am of the opinion that the orders cannot stand.’

Judges:

Jessel MR, James and Cotton LJJ

Citations:

(1880) 16 Ch D 41

Jurisdiction:

England and Wales

Cited by:

Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Updated: 07 July 2022; Ref: scu.238880

Kirby v Leather: CA 1965

The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.’ The action should have been started by a next friend. It was not, but that had been put right at the trial when at the suggestion of the judge a next friend was appointed.
Lord Denning MR said: ‘After a time he was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter. But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have. In particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.’

Judges:

Lord Denning MR

Citations:

[1965] 2 QB 367

Jurisdiction:

England and Wales

Cited by:

Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 July 2022; Ref: scu.238879

Gaydamak and Another v UBS Bahamas Ltd and Another: PC 28 Feb 2006

(Bahamas) The appellant sought re-instatement of their case which had been struck out for their non-attendance at the hearing. The court had said it would not be listed.
Held: Where a blameless absent litigant whose case has been struck out is seeking its re-instatement, and where there has been no undue delay and there is no likelihood of prejudice to the other parties, their Lordships consider that it is for the other parties to show that the case had no chance of success.’ The court had placed the onus on the appellants, and had erred. The appeal should be re-instated.

Judges:

Lord Bingham of Cornhill, Lord Hutton, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 8, Times 07-Mar-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Grimshaw v Dunbar CA 1953
A tenant wanted to defend a possession claim brought by his landlord for rent arrears. Having discharged the arrears, he was told by court staff that he need not attend the hearing. He didn’t and the possession order was made in his absence. he . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 July 2022; Ref: scu.238918

Kensington International Ltd v Republic of Congo and Another: ComC 20 Jul 2006

The claimant sought leave to cross examine an officer of the defendant in connection with his affidavit sworn in search order proceedings. The case had a history of deceit and dishonest oral evidence.
Held: Though such an order would be exceptional, sufficient grounds had been shown in this case.

Judges:

Morison J

Citations:

[2006] EWHC 1848 (Comm)

Links:

Bailii

Citing:

Cited – Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
See Also – Kensington International Ltd v Republic of the Congo; Glencore Energy UK Limited, Sphynx UK Limited, Sphynx (BDA) Limited, Africa Oil and Gas Corporation, Cotrade SA (Third Parties) ComC 28-Nov-2005
The claimant had taken an assignment of debts owed by the defendant, and obtained judgment in US$121m. They sought to enforce the judgment and obtained third party debt orders against the parties listed.
Held: Officers in the third party . .
Cited – CBS United Kingdom Ltd v Perry 1985
The parties have the right to ask for cross-examination in the context of the Anton Piller jurisdiction. Falconer J said: ‘Some inconsistencies may well become apparent between what is said when they respondents are taken by surprise when confronted . .
Cited – Yukong Lines v Rendsburg Investment Corporation CA 17-Oct-1996
An order for cross examination in an application for a Mareva order is exceptional, but permissible if it is just and convenient that such an order should be made. In applying the test of whether it would be ‘just and convenient’ to make the order, . .
Cited – Phillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
See Also – Kensington International Ltd v Republic of The Congo ComC 16-Apr-2003
. .
See Also – Kensington International Ltd v Republic of the Congo CA 13-May-2003
The claimant had obtained judgment against the defendant for US$60m, and had sought a Mareva injunction against the defendant republic’s assets and against the assets of companies through which it operated in the UK. The claimant now appealed . .
See Also – Kensington International Ltd and Another v Republic Of the Congo ComC 26-May-2006
. .

Cited by:

See Also – Kensington International Ltd v Republic of the Congo ComC 13-Jul-2007
. .
See Also – Kensington International Ltd v Republic of the Congo ComC 13-Jul-2007
. .
See Also – Kensington International Ltd v Republic of Congo CA 7-Nov-2007
The defendants appealed against orders requiring them to disclose documents in an action regarding the payment of bribes, saying that the requirement effectively required them to incriminate themselves.
Held: The appeal failed. The public . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 07 July 2022; Ref: scu.243428

Pelling v Bruce-Williams: CA 25 Jul 2006

Application to discharge injunction – court considering it spent.

Judges:

Wall LJ

Citations:

[2006] EWCA Civ 1046

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 07 July 2022; Ref: scu.243402

Barracks v Coles and Commissioner of Police for the Metropolis: CA 21 Jul 2006

The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said that she had failed in her vetting, and that they were prohibited in law from disclosing the information sought, either to the claimant or the court. The EAT had held a hearing from which the claimant and her advisers had been excluded, and then accepted that the police were prohibited from disclosing the material.
Held: ‘Ordinarily, case management orders made in the exercise of the employment tribunal’s wide discretion will not be disturbed on an appeal, which is confined to questions of law’ The EAT had been wrong to hear the evidence in the absence of the defence, but the defect was curable. Procedures could be adopted to minimise the impact on the case of the restrictions, which could restrict either side. Any question of interference with the right to a fair trial might proportionate and for the legitimate aim of protecting national security, but this would be a matter for the tribunal. The tribunal had been wrong to make an ‘unless order’ which couldnot be complied with by the police without breaking the law. The case would be remitted, but the tribunal should disregard that part of the EAT judgment derived from the wrongful hearing. Matters of EC and ECHR law should be decided on the facts as presented in due course.

Judges:

Mummery LJ, Sir Anthony Clarke MR, Wall LJ

Citations:

[2006] EWCA Civ 1041, Times 07-Aug-2006, [2006] EWCA Civ 1155, [2007] IRLR 73, [2007] ICR 60, [2006] Po LR 217

Links:

Bailii, Bailii

Statutes:

Race Relations Act 1976 1(1)(a) 4, Regulation of Investigatory Powers Act 2001 18(7)

Jurisdiction:

England and Wales

Citing:

Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Appeal from – Chief Superintendent John Coles Commissioner of Police of the Metropolis v J Barracks EAT 19-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal. Appellants refused to reveal the reason for black officer’s unsuccessful application to Trident police team, following vetting procedure. Held that they were . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Cited – Union Nationale Des Entraineurs Et Cadres Techniques Professionnels Du Football (UNECTEF) v Heylens And Others ECJ 15-Oct-1987
Europa The lawful requirement whereby, in the various member states, admission to certain occupations is subjected to the possession of diplomas constitutes a restriction on the effective exercise of the freedom . .
Cited – Mantovanelli v France ECHR 18-Mar-1997
Hudoc Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings
An alleged Article 6 breach has to be considered in the overall context . .
Cited – NJ v Essex County Council and Another; In re J (Care: Assessment: Fair Trial); Re J (a child) (care proceedings: fair trial) CA 11-May-2006
The family complained that the local authority had, in assessing the need for a care order, failed to follow the guideliens set down in In Re L, leading to an infringement of their human rights.
Held: Neither in the lower court nor here had . .
Cited – Chief Superintendent John Coles Commissioner of Police of the Metropolis v J Barracks EAT 19-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal. Appellants refused to reveal the reason for black officer’s unsuccessful application to Trident police team, following vetting procedure. Held that they were . .

Cited by:

Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Cited – Tariq v The Home Office EAT 16-Oct-2009
EAT PRACTICE AND PROCEDURE
Disclosure
HUMAN RIGHTS
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Litigation Practice, Police

Updated: 07 July 2022; Ref: scu.243362

Toth v Jarman: CA 19 Jul 2006

The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: The presence of a conflict of interest in an expert need not necessarily disqualify an expert, though ‘where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.’ The test was as to the independence of his opinion. The court made suggestions for the Rules committee as to possible amendments to the expert’s standard declaration.

Judges:

Sir Mark Potter President, Arden LJ, Wall LJ

Citations:

[2006] EWCA Civ 1028, Times 17-Aug-2006, [2006] 4 All ER 1276

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg (No 2) 2001
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ . .
Cited – Pollivitte Ltd v Commercial Union Assurance Company Plc 1987
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
Cited – Field and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:

See Also – Toth v Jarman CA 21-Nov-2006
. .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Litigation Practice, Evidence

Updated: 07 July 2022; Ref: scu.243326

Re Brickman’s Settlement: 1981

Caution on the naming of large numbers of parties in pleadings.

Citations:

[1982] 1 All ER 336, [1981] 1 WLR 1560

Jurisdiction:

England and Wales

Cited by:

Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 July 2022; Ref: scu.241375

Heyward v Plymouth Hospital NHS Trust: CA 20 Jun 2005

The claimant appealed an order refusing him permission to rely upon an additional report from a consultant occupational psychologist in supprt of hs claim for damages in negligence after alleging stress at work. The case management conference had been conducted by telephone.
Held: One expert report per side was sufficient in these circumstances. Where a case management conferemce was conducted by telephone, it was important that he judge should have before him all the relevant papers, so that the submissions of the parties should be intelligible.

Judges:

Lord Phillips MR, Waller, Lloyd LJJ

Citations:

[2005] EWCA Crim 939, Times 01-Aug-2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Chesterfield v North Derbyshire Royal Hospital NHS Trust CA 2004
A claim was brought on behalf of a child with cerebral palsy, said to result from clinical negligence at the time of the child’s birth. Each side had permission to call one expert consultant obstetrician but the claimant had sought permission to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 July 2022; Ref: scu.229199

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 decided only to allow an appeal on terms unacceptable to the council. The council now sought to raise each issue in the Court of Appeal.
Held: The appeal could proceed (Waller LJ dissenting). The crucial element lay in section 13(2). That subsection prevented an appeal where a decision had been made, but the word ‘decision’ was not to be restricted to the meaing of judgment or order’ in section 16(1) of the 1961 Act. The judge had granted permission, and therefore thought there was some possibility of success. The case should therefore be heard.

Judges:

Waller, Maurice Kay LJJ, Sir Christopher Staunton

Citations:

[2005] EWCA Civ 986, Times 16-Sep-2005, [2005] 1 WLR 3626

Links:

Bailii

Statutes:

Education Act 1996 509(1), Administration of Justice Act 1969 12(1) 13(2)(b), Supreme Court Act 1961 16(1)

Jurisdiction:

England and Wales

Citing:

Cited – Lake v Lake CA 1955
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 . .
Cited – Zenovics, Regina (on the Application Of) v Secretary of State for the Home Department CA 7-Mar-2002
. .
Cited – Regina v Emmett and Another HL 16-Oct-1997
The defendants had been arrested as they unloaded four tons of cannabis from a boat.
Held: Their appeal against a confiscation order was allowed despite the acceptance of a statement when the acceptance had been based on a mistake of law or . .

Cited by:

See Also – Ceredigion County Council v Jones and others HL 23-May-2007
The parties had disputed the provision of free travel to school, and permission had been granted for a leapfrog appeal direct to the House of Lords. The Council then sought instead to take the matter to the Court of Appeal. The claimants said that . .
Lists of cited by and citing cases may be incomplete.

Education, Litigation Practice

Updated: 06 July 2022; Ref: scu.229051

Steinberg v Englefield and Another: CA 5 Jul 2005

Citations:

[2005] EWCA Civ 824

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Steinberg v Pritchard Englefield (A Firm) and Another CA 3-Mar-2005
The defendant appealed dismissal of his defence to an action in defamation.
Held: The court proceeded in his absence, discerning two grounds of appeal from the papers. He had suggested that he awaited pro bono representation but was by . .
See Also – Englefield and Another v Steinberg CA 26-Mar-2001
Application for leave to appeal out of time against an interim order in defamation claim.
Held: The defendant had not shown any good cause for setting the judge’s case management directions aside, nor that he should recuse himself. . .
See Also – Pritchard Englefield (A Firm) and Another v Steinberg SCCO 27-Mar-2003
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 July 2022; Ref: scu.228223

Senior and Another v Pearson and Ward (A Firm): CA 26 Jan 2001

An amendment outside the limitation period against solicitors alleging a failure to advise was permitted, where the original allegation was simply that the solicitors had acted without or in disregard of instructions.

Citations:

[2001] EWCA Civ 229

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

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.

Litigation Practice, Limitation

Updated: 06 July 2022; Ref: scu.200768

Rooftops South West Ltd and Others v Ash Interiors (UK) Ltd and Others: QBD 30 Aug 2018

Allegation that the successful claimant had unlawfully seized property in execution of its judgment debt, and for invasion of privacy by TV film crew recording the seizure.

Judges:

Davison M

Citations:

[2018] EWHC 2799 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Torts – Other

Updated: 06 July 2022; Ref: scu.638461

Emmerson International Corporation v Renova Holding Ltd: PC 20 May 2019

9From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)) Whether leave to appeal to the Court of Appeal of the Eastern Caribbean is required in respect of a variation of a disclosure order made in conjunction with, and as part of, a freezing order.

Judges:

Lord Reed, Lord Wilson, Lord Carnwath, Lady Black, Lord Sales

Citations:

[2019] UKPC 24

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 06 July 2022; Ref: scu.638476

Hamilton v Brodie Brittain Racing Ltd: CA 13 Dec 1995

The defendant disputed at trial the authenticity of invoices, but provided no forensic evidence to support his challenge. The trial judge had accepted the invoices as authentic. The defendant subsequently adduced evidence which strongly suggested that the invoices were forgeries. The trial judge refused to order a new trial on the basis that the defendant had failed to show that it could not have obtained the new evidence in time for the trial.
Held: The appeal succeeded, and a new trial was ordered.
Butler-Sloss LJ said that, in a case of alleged fraud, the first of the Ladd v Marshall conditions should be approached with a greater degree of flexibility: ‘Too strict an adherence to Ladd v Marshall should not inhibit a consideration by the court of the justice of the case.’

Judges:

Butler-Sloss LJ

Citations:

Unreported, 13 December 1995

Jurisdiction:

England and Wales

Cited by:

Instructive – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 July 2022; Ref: scu.414954

Lexi Holdings (In Administration) v Pannone and Partners: ChD 18 Jun 2010

Opposed application for an order for the provision of further information under CPR 18.1.

Judges:

Briggs J

Citations:

[2010] EWHC 1416 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 18.1

Jurisdiction:

England and Wales

Citing:

See Also – Lexi Holdings (In Administration) v Pannone and Partners ChD 26-Oct-2009
The parties sought preliminary decisions in their court action. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 July 2022; Ref: scu.417092