Category: Litigation Practice

Regina v Bloomsbury and Marylebone County Court ex parte Villerwest Limited: 1976

Lord Denning said that every Court has inherent power to control its own procedure, even though there is nothing in the rules about it, and ‘Suppose a man is on his way to the court in time with the money in his pocket. Then he is run down in an accident, or he is robbed of it. Or suppose that his cheque has been held up in the bank for a short time. Has the court no power to enlarge the time in such a case?’ . . ‘The Rules of the Supreme Court as to time have to be observed, and if substantial delay occurs without any explanation being offered, the court is entitled, in the exercise of its discretion, to refuse the extension of time . . Nevertheless, quite apart from the powers under the Rule, there is a very wide inherent jurisdiction, both in the High Court and in the County Court, to enlarge any time which the court or judge has ordered’

Judges:

Lord Denning MR

Citations:

[1976] 1 WLR 362, [1976] 1 All ER 897

Jurisdiction:

England and Wales

Cited by:

Cited – Jephson Homes Housing Association v Moisejevs and Another CA 1-Nov-2000
A possession warrant, properly issued and executed in ignorance of a payment into court by the tenant was not an abuse of process. The tenant had paid funds into court in the mistaken belief that this would be effective to set aside the warrant. She . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.187051

Joyce v Yeomans: CA 1981

The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an appellate court in assessing the value, the reliability and the impressiveness of the evidence of the experts called on either side. There are various aspects of such evidence in respect of which the trial judge can get the ‘feeling’ of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in the witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the transcript, although plain to the trial judge. I mention only two aspects of the matter, but there are others.’

Judges:

Brandon LJ

Citations:

[1981] 1 WLR 549, [1981] 2 All ER 21

Jurisdiction:

England and Wales

Cited by:

Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.187269

SS Hontestroom v SS Sagaporack: HL 1927

The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to reverse conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should be let alone.
Viscount Sumner said: ‘What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII, r. 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less not to have seen the witnesses puts appellate Judges in a permanent position of disadvantage as against the trial Judge and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at merely on the results of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.’
. . and ‘If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should . . be let alone.’

Judges:

Lord Sumner

Citations:

[1927] AC 37, [1927] All ER 831, 136 LT 33

Jurisdiction:

England and Wales

Citing:

Cited – Bland v Ross (Ship Julia) (Admiralty) PC 1860
The court considered the care needed in an appellate court in reversing a decision on the facts. Lord Kingsdown said that: ‘They, who require this Board, under such circumstances to reverse a decision of the court below upon a point of this . .

Cited by:

Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – The Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Harracksingh v The Attorney General of Trinidad and Tobago and PC Neville Adams PC 15-Jan-2004
(Trinidad and Tobago) The appellant had succeeded in a claim for damages against the police for false imprisonment and assault. He now appealed a reversal of that decision. The judge had been doubtful as to the value of the police evidence. The . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
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 – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
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 – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Approved – 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.187257

Moore v News of the World: CA 1972

An article was published which the plaintiff said left readers with the false apprehension that she had written it. She claimed under the statutory tort of false attribution.
Held: The judge was correct to direct the jury to make up their minds what the impression was to the reader. Confirming that a judge need not deal in detail with facts which were admitted by both parties when directing the jury in a defamation trial, ‘There were left out of the summing up, as out of every summing up which deserves the name, some of the things which one party, and probably both parties, would have liked put in; but there was no omission which could have led to a misunderstanding or injustice.’
Lord Denning MR set out section 5 of the 1952 Act and said: ‘That is a very complicated section, but it means that a Defendant is not to fail simply because he cannot prove every single thing in the libel to be true. If he proves the greater part of it to be true, theneven though there is a smaller part not proved, nevertheless the Defendant will win as long as the part not proved does not do the Plaintiff much more harm.’

Judges:

Stephenson LJ, Lord Denning MR

Citations:

[1972] 1 QB 441

Statutes:

Copyright Act 1956 843, Defamation Act 1952 5

Jurisdiction:

England and Wales

Cited by:

Cited – Basham v Gregory and Little Brown and Co CA 2-Jul-1998
The defendant sought a retrial of his action for defamation.
Held: The judge’s directions on meaning as to the respective contentions was correct, and also the allocation of the burden of proof. Whilst the court had reservations about the . .
Cited – Alan Kenneth McKenzie Clark v Associated Newspapers Ltd PatC 21-Jan-1998
The claimant was a member of Parliament and an author. The defendant published a column which was said to give the impression that the claimant had written it. It was a parody. The claim was in passing off.
Held: The first issue was whether a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 16 May 2022; Ref: scu.185253

Palamisto General Enterprises SA v Ocean Marine Insurance Limited: CA 1972

‘Where a party asserts his opponent’s complicity in . . criminal misconduct, the case is pre-eminently one in which not only the RSC (Ord. 18 r.12(1) and Ord. 72 r. 7(2)) but also fair treatment require that, so far as practicable, the matter shall be pleaded with particularity so that the party accused may know what case he has to meet. But even if the allegations in the present statement of claim fall short of asserting criminal misconduct, they undoubtedly impute conduct of a gravely improper character which call for no less clear particularisation .’

Judges:

Buckley LJ

Citations:

[1972] 2 WLR 1425

Jurisdiction:

England and Wales

Cited by:

Applied – John Zink and Co Limited v Wilkinson CA 1973
Where a party alleged breach of confidence, the pleadings should be sufficiently particular to allow a defendant to know the particular allegations he faced. . .
Cited – The Secretary of State for Trade and Industry v Swan and Othes ChD 22-Jul-2003
When commencing proceedings under the Act, the papers were defective. The secretary of state had failed to give appropriate notice, and thus prevented him from making representations as to the allegations. The allegations involved the manipulation . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.185773

Neville v Fine Art: HL 1897

Lord Halsbury said: ‘Where you are complaining of a non-direction of the Judge, or that he did not leave a question to the jury, if you had the opportunity of asking him to do it and you abstain from asking for it, no Court would ever have granted you a new trial.’

Judges:

Lord Halsbury

Citations:

[1897] AC 68

Jurisdiction:

England and Wales

Cited by:

Cited – Basham v Gregory and Little Brown and Co CA 2-Jul-1998
The defendant sought a retrial of his action for defamation.
Held: The judge’s directions on meaning as to the respective contentions was correct, and also the allocation of the burden of proof. Whilst the court had reservations about the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.185252

Harper v Inspector of Rutherglen: 1903

Lord Trayner said: ‘Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication’.

Judges:

Lord Trayner

Citations:

(1903) 6 F 23

Cited by:

Adopted – Arcari v Dunbartonshire County Council 1948
. .
Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 16 May 2022; Ref: scu.184723

Arbrath v North Eastern Railway Co: 1886

The burden of proof of a matter can shift during the course of a trial.

Citations:

(1886) 11 App Cas 247

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.184694

Rogers v Whiteley: HL 1892

Discussing an order attaching all debts, the House held: The effect of an order attaching ‘all debts’ owing or accruing due by [the garnishee] to the judgment debtor is to make the garnishee custodier for the Court of the whole funds attached; and he cannot, except at his own peril, part with any of those funds without the sanction of the Court. All debts due and owing by the garnishee are attached to answer the judgment creditor’s demand – that is, they are all captured for the purpose of afterwards answering that demand.

Judges:

Lord Halsbury LC, Lord Watson, Lord Morris

Citations:

[1892] AC 118

Jurisdiction:

England and Wales

Cited by:

Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.183520

Gunning v United Liverpool Hospitals’ Board of Governors: CA 1973

With regard to pre-action disclosure and the question of whether a party was ‘likely’ to be a party to subsequent proceedings, ‘likely’ must be given its more extended and open meaning because otherwise one of the fundamental purposes of the statute will have been undermined.

Judges:

Lord Denning MR

Citations:

[1973] 1 WLR 586

Jurisdiction:

England and Wales

Cited by:

Cited – Cream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.182934

Guinness Peat Properties Ltd v Fitzroy Robinson Partnership: CA 1987

Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer pursuant to condition 4 of the policy. The notification to the insurer contained FRP’s views about the merits of the claim. The Court was now asked whether that notification was produced for the dominant purpose of litigation such that FRP was entitled to assert litigation privilege over it. FRP admitted that its dominant purpose, in sending the notification, was to comply with its obligations under condition 4 of the policy. GPR claimed that FRP could not assert litigation privilege in these circumstances because it was FRP’s dominant purpose, as the author of the notification, that mattered and FRP had accepted that its only purpose was to comply with condition 4.
Held: The Court of Appeal accepted the submissions of counsel for FRP that ‘the insurers will need to receive immediate notification . . so that they can set about obtaining legal advice’ and that ‘the letter owed its genesis to the dominant purpose that it should be used for the purpose of obtaining legal advice and in any ensuing litigation’
The Court was satisfied that it was appropriate to take into account, not just the dominant purpose of the insured who authored the document, but also the dominant purpose of the insurer on whose requirements the insured was acting in so doing.
‘I accept that the dominant purpose of the [notification] must be viewed objectively on the evidence, particularly by reference to the intentions of the insurers who procured its genesis. Subject to what is said below, I accept that, so viewed, the dominant purpose was to produce a letter of notification which would be used in order to obtain legal advice or to conduct or aid in the conduct of litigation which was at the time of its production in reasonable prospect ‘
Slade LJ referred to Nourse LJ’s judgment in Goddard, and said that the court ‘should ordinarily intervene in such cases, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy.’

Judges:

Slade LJ

Citations:

[1987] 1 WLR 1027, [1987] CLY 3060

Jurisdiction:

England and Wales

Citing:

Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Cited by:

Cited – Mohamad Al Fayed v The Commissioner of Police of the Metropolis CA 29-May-2002
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also . .
Applied – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.182969

Marubeni Corporation v Sea Containers Ltd: ComC 17 May 1995

Procedure – set-off – contract for supply of containers – construction of contract – clear words to exclude right of set-off – equitable set-off – abatement – defective containers. The words ‘without deduction’ have been held in the context of a purely commercial contract to exclude the right of set-off. The court was concerned with a clause which incorporated the word ‘deduction’ with payment: ‘… without any deductions or withholdings whatsoever.’
Held: The words were not terms of art: ‘It is unlikely either could be described as a clear word. At the end of the day therefore, the question is one of construction in the context of the contract as a whole and it is to that I shall now turn.’ The right of set-off was excluded.

Judges:

Waller J

Citations:

Unreported, 17 May 1995

Jurisdiction:

England and Wales

Citing:

Cited – Connaught Restaurants Ltd v Indoor Leisure Ltd CA 17-Sep-1993
The lease provided the tenant would pay the rent ‘without any deduction’.
Held: The words ‘without any deductions’ in a lease were ambiguous and were insufficient to exclude the tenant’s right to claim a set off. Clear words are needed before . .

Cited by:

Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 16 May 2022; Ref: scu.182577

Goddard v Nationwide Building Society: CA 1986

A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence.
Held: The defendant’s appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
Nourse LJ said: ‘The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary.’
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief ‘does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come’ Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the materiality of the communication or the justice of admitting or excluding it or like considerations: ‘The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay.’
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: ‘A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected.’
May LJ said: ‘I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them.’

Judges:

Nourse, May LJJ

Citations:

[1987] 1 QB 670, [1986] 3 WLR 734

Jurisdiction:

England and Wales

Citing:

Applied – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Applied – Calcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
Considered – Butler v Board of Trade ChD 1970
Goff J discussed the criterion for admissibility of evidence:’If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a . .

Cited by:

Cited – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
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 . .
Cited – English and American Insurance Co Ltd and Others v Herbert Smith ChD 1987
Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse. . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
Cited – Guinness Peat Properties Ltd v Fitzroy Robinson Partnership CA 1987
Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer . .
Cited – Webster v James Chapman and Co 1989
An expert’s report prepared for the plaintiff was by mistake enclosed along with a letter to the defendant’s solicitors. When informed of the mistake the plaintiff’s solicitors sought its return with an undertaking to make no use of it. The . .
Cited – Bell Cablemedia Plc etc v Simmonds CA 29-Apr-1997
Any person who is legitimately in premises may refer any material found there to the police. . .
Cited – ISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited ChD 14-Feb-2003
Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily . .
Cited – Trevorrow v State of South Australia (No 4) 16-Feb-2006
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant . .
Cited – In Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .
Cited – BBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Equity

Updated: 16 May 2022; Ref: scu.182250

Simon Engineering Plc and Another v Butte Mining and Another (No 2): ComC 27 Feb 1995

Procedure – Interlocutory injunction – anti-suit injunction – injunction to prevent appeal in the US from being pursued – foreign court pronounced itself to be without jurisdiction – natural forum – foreign proceedings oppressive

Judges:

Rix J

Citations:

[1996] 1 Lloyd’s Rep 91

Jurisdiction:

England and Wales

Litigation Practice, International

Updated: 16 May 2022; Ref: scu.182569

Bolton v Liverpool Corporation: HL 1833

The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights.’

Judges:

Lord Brougham LC

Citations:

(1833) 1 My and K 88, [1833] EngR 409, (1833) 39 ER 614

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bolton v The Corporation of Liverpool 1833
. .
See Also – Bolton v Corporation of Liverpool 1833
A party has a right to the production of such deeds only as either sustain his own title exclusively, or sustain it jointly with that of his adversary. A party is not compellable to produce, for the purposes of an action or suit, cases laid before . .

Cited by:

Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 16 May 2022; Ref: scu.182241

In re Liddell’s Settlement Trusts: CA 1936

The Court upheld an injunction issued against Mrs Liddell who was not a party to the proceedings and who had taken her children to the United States. When granting an injunction, the court should operate on the basis that it will be obeyed, and not anticipating its breach. The fact that an injunction may not be enforceable is not a conclusive reason against its grant. In re Aktiebolaget Robertsfors did not apply since she was ordinarily domiciled in the jurisdiction.

Judges:

Romer LJ, Greene LJ

Citations:

[1936] Ch 365

Jurisdiction:

England and Wales

Citing:

Distinguished – In re Aktiebolaget Robertsfors and La Societe Anonymes des Papeteries de l’AA CA 1910
The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices.
Held: The power was only exercisable in situations where service out of a writ was permissible under . .

Cited by:

Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.182495

Fazil-Alizadeh v Nikbin: CA 25 Feb 1993

There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become eroded. The taped without prejudice conversation might have been taken to contain an admission by the claimant of the payment of andpound;10,000 although he continued in his pleadings to deny such payment, but that did not come within the exception to the rule.
Simon-Brown LJ said that: ‘I add only this. There are in my judgment powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become eroded.’

Judges:

Simon Brown, Balcombe, Peter Gibson LJJ

Citations:

25 February 1993 (unreported), Court of Appeal (Civil Division) Transcript No 205 of 1993, Times 19-Mar-1993

Jurisdiction:

England and Wales

Cited by:

Cited – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 16 May 2022; Ref: scu.182473

Buttes Oil and Gas Co v Hammer: CA 1981

Reports made by employees to their employers or by agents to their principals are not privileged unless they satisfy, and are privileged if they are reports made for the purpose of being laid before the party’s legal adviser for the purpose of obtaining his advice in connection with the anticipated or pending litigation.
Attention was drawn to the option of striking out a reference to documents in a pleading if it was decided to assert privilege in respect of them. The existence of such an option was predicated upon the supposition that a once and for all waiver had not already taken place by virtue, merely, of the inclusion of a reference to the advice in a pleading. What the Master of the Rolls had in mind, as he made clear, was a situation where the reference to advice had been inadvertent.

Judges:

Lord Denning MR

Citations:

[1981] 1 QB 223

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Trutch, and Mary Trutch CACD 25-Jul-2001
The defendants had been pursued in substantial commercial litigation. They were alleged to have perjured themselves in affidavits of means sworn and filed at court. Later they had entered into deeds with the other parties, and part of the . .
Appeal from – 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 – Walsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 16 May 2022; Ref: scu.180868

R A Lister Ltd v Thompson (Shipping) Ltd: 1987

When asking whether a liability remained to support a claim, after a compromise, a relevant liability would include a future liability imposed by the court even if that had not yet been assessed.

Citations:

[1987] 3 All ER 1032

Jurisdiction:

England and Wales

Cited by:

Cited – Abbey National Bank plc v Matthews and Son (a Firm), David Gouldman and Co (a firm) ChD 21-Feb-2003
The claimant made claims against two defendants. It had compromised the claim against one defendant, taking an assignment of that party’s claim against the remaining defendant and continued against that second defendant.
Held: It could not be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.180959

British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd: 1908

The court explained the law underlying the civil and criminal penalties for the maintenance of an action by third parties: ‘It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse.’

Judges:

Fletcher-Moulton LJ

Citations:

[1908] 1 KB 1006

Cited by:

Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 16 May 2022; Ref: scu.181095

Derby and Co Ltd And Others v Weldon And Others (No 9): ChD 25 Jul 1990

The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and whether stored in the computer itself or in back-up files, was a document’ and ‘. . there can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern and County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of the chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by co-ordinates and recorded in the form of groups of binary numbers. And so no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language.’
The plaintiffs provided discovery by way of computer printouts. Some defendants sought access to the computer to obtain information about the transactions at issue. The plaintiffs resisted saying that the computer was not a document subject to discovery.
Held: The computer database was a document capable of discovered. However the actual discovery ordered would be limited to matter material to the action, and made subject to other conditions so as to protect the records.

Judges:

Mr Justice Vinelott

Citations:

[1991] 1 WLR 652, [1991] 2 All ER 901

Links:

lip

Jurisdiction:

England and Wales

Citing:

Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.

Cited by:

Cited – Victor Chandler International v Commissioners of Customs and Excise and another CA 8-Mar-2000
A teletext page can be a document for gaming licensing purposes. A bookmaker sought to advertise his services via a teletext page. His services were not licensed in this country, but the advertisements were. It was held that despite the . .
Cited – Alliance and Leicester Building Society v Ghahremani and others 1992
The court rejected a submission that Mr Justice Vinelott’s view as to the scope of the word ‘document’ was restricted to questions of discovery under the rules of court. He applied the extended meaning of a document described to the question of . .
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Cited – Your Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 May 2022; Ref: scu.177326

Grant v Southwestern and County Properties Ltd: ChD 1974

The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording was accordingly a document. Obiter, the court recognised the distinction between a verbatim tape-recording of a conversation and a summary of the note-taker’s recollection of a conversation with the other party to the litigation.
Walton J said: ‘it seems to me that the simplest and most foolproof method of ‘inspection’ in these cases is for the party giving discovery to play the tape to the party to whom discovery is being given, and for that party to make his own recording as it is played.’

Judges:

Walton J

Citations:

[1975] Ch 185, [1974] 2 All ER 465

Jurisdiction:

England and Wales

Cited by:

Cited – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 May 2022; Ref: scu.180095

Powell v Kempton Park Racecourse Co Ltd: HL 1899

A statute prohibited the keeping of ‘a house, office, room or other place’ for betting. The defendant kept an uncovered enclosure for betting.
Held: His activity did not fall within the list under the ejusdem generis rule, The three specific items were all enclosed spaces, and the defendant’s was not. A preamble cannot, therefore, be used to qualify or cut down the enactment which follows

Judges:

Earl of Halsbury LC.

Citations:

[1899] AC 143

Jurisdiction:

England and Wales

Litigation Practice

Updated: 16 May 2022; Ref: scu.606352

Main v McAndrew Wormald Ltd: 1988

Citations:

1988 SLT 141

Jurisdiction:

Scotland

Cited by:

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.

Litigation Practice

Updated: 16 May 2022; Ref: scu.606457

Reading v The London School Board: 1886

Wills J said: ‘All the common law statutes as to interpleader are now repealed and the right to that class of relief is regulated by Order LVII, by which the old practice of the Court of Chancery is modified’.

Judges:

Wills J

Citations:

(1886) 16 QBD 686

Jurisdiction:

England and Wales

Cited by:

Cited – Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement) QBD 16-Feb-2018
Equitable Interpleader
Equitable Interpleader – Enforcement – controlled goods – interpleader – equity – common law – Civil Procedure – Rules of Supreme Court – title to goods – third party – Writ – High Court Enforcement Officers . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 May 2022; Ref: scu.605168

Beattie v Halliday: 4 Feb 1982

The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage.
Held: Lord Justice-Clerk Wheatley said: ‘An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong.’

Judges:

Lord Justice-Clerk Wheatley

Citations:

Unreported 4 February 1982

Cited by:

Cited – McCusker v Saveheat Cavity Wall Insulation Ltd 1987
. .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 16 May 2022; Ref: scu.559415

Davy v Garrett: 1878

It is not sufficient in pleadings to allege facts from which fraud might be inferred but which are also consistent with innocence.
Thesiger LJ said: ‘Fraudulent conduct must be distinctly alleged and distinctly proved, and it [is] not allowable to leave fraud to be inferred from the facts’ and ‘General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice.’

Judges:

Thesiger LJ

Citations:

(1878) 7 ChD 473

Cited by:

Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 15 May 2022; Ref: scu.548011

Gilbert v Endean: CA 1878

The plaintiff had obtained an order against a defendant for the defendant to give a bond for payment of money to the plaintiff and to deposit some shares as security for compliance. Subsequently, the plaintiff entered into a compromise with the defendant by which the plaintiff agreed to accept payment of a smaller sum. However, the plaintiff later sought to proceed under the initial order on the basis that the compromise was reached because the defendant had concealed a material fact, that is, the defendant’s father had died during the negotiations for the compromise whereas the plaintiff had been led to believe that the father was alive and would not help the defendant. In other words, the defendant was not in the penniless state that he had led the plaintiff to believe. The court at first instance allowed the plaintiff to enforce the initial order A failure to object to the reception of evidence at the time when it is tendered ordinarily amounts, of course, to a waiver of objections.
Cotton LJ said that: ‘those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.’

Judges:

Cotton LJ

Citations:

(1878) 9 Ch D 259

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

Litigation Practice

Updated: 15 May 2022; Ref: scu.545143

Ex Parte Lewin; In re Ward: 1946

(Australia – New South Wales) The court heard an an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises. The magistrate had already heard and determined a similar application between the landlord and a different tenant, which involved consideration of evidence of a witness also proposed to be called in the proceedings in issue. The magistrate had not done or said anything which in fact indicated that he would not determine the proceedings on the merits.
Held: McClemens J discharged the rule nisi. After dealing with the question of apprehended or ostensible bias in the particular circumstances, he went on to reject a finding urged upon him of real bias, adding: ‘No judicial officer has a vested interest in any one of his decisions, and if the circumstances arise where it is proper that he has to reconsider it, he should do so, and if he thinks it wrong, say so.’

Judges:

McClemens J

Citations:

[1964] NSWR 446, 80 WN (NSW) 1527

Cited by:

Approved – Livesey v New South Wales Bar Association 20-May-1983
High Court of Australia – Courts and Judges – Bias – Prejudgment of issues and of credibility of witness – Refusal to withdraw.
The defendant barrister resisted an application to strike his name off the roll. B, at the time a law student and . .
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 15 May 2022; Ref: scu.537710

In re S (A Child) (Family Division: Without Notice Orders): FD 2001

Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will require the applicant, and, where appropriate, the applicant’s solicitor, to give a series of undertakings, (a) where proceedings had not yet been issued, to issue and serve proceedings on the respondent, either by some specified time or as soon as practicable; (b) where the application had been made otherwise than on sworn notice, to cause to be sworn, filed and served on the respondents as soon as practicable an affidavit substantially in terms of the draft affidavits produced to the court or, as the case might be, confirming the substance of what was said to the court; (c) to serve on the respondents, as soon as practicable, notice of the proceedings and a sealed copy of the order, copies of the affidavits, any exhibits and notice of return date.
He said: ‘The burden on those who apply for ex parte relief is, as indicated in Memory Corpn plc v Sidhu (No 2) [2000] 1 WLR 1443, a heavy one. And, as the same case shows, the duty of full and frank disclosure is not confined to the material facts: it extends to all relevant matters, whether matters of fact or of law. As Lord Donaldson of Lymington MR said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 229, it cannot be too strongly emphasised that those who seek ex parte injunctions are under an obligation to make the fullest and most candid disclosure of all relevant circumstances known to them.’

Judges:

Munby J

Citations:

[2001] 1 FLR 308, [2001] 1 WLR 211, [2001] 1 All ER 362

Jurisdiction:

England and Wales

Citing:

Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Confirmed – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .

Cited by:

Cited – In re W (Children) FD 25-Jul-2014
. .
Cited – Re W (A Child) (A Child) (Adoption Order: Leave to Oppose) CA 16-Oct-2013
Sir James Munby discussed the lamentable failure by a local authority to comply with an order of the court: ‘That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a . .
Cited – Tower Hamlets v M and Others FD 27-Mar-2015
The authority sought orders to prevent the respondent children travelling to countries controlled by the ISIS groups. The parents being unlikely to be effective to restrain them, the court had made them wards of court.
Held: ‘the status of a . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 15 May 2022; Ref: scu.535416

Faryna v Chorny: 1952

When a finding of fact depends on a matter such as the logical consistency of the evidence rather than the manner of the witness, an appellate court may be more readily willing to reject a finding of a specific fact.
Justice O’Halloran said: ‘But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstance that the Judge may have remarked favorably or unfavorably on the evidence or the demeanor of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time; and cf. Brethour v. Law Society of B.C., [1951] 2 D.L.R. 138 at pp. 141-2.
If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet 1919 CanLII 11 (SCC), (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295.
A witness by his manner may create a very unfavorable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say ‘I believe him because I judge him to be telling the truth’ is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.’

Judges:

Justice O’Halloran

Citations:

[1952] 2 DLR 354

Jurisdiction:

Commonwealth

Cited by:

Cited – Re S (Children, W and T) CA 14-May-2014
The parents sought leave to appeal against a care order made on a finding of sexual abuse of one of the children, saying that the court had failed to allow for the inherent improbability of the facts alleged. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.525473

Rocco Giuseppe and Figli v Tradax Export SA: 1983

The Court has no power to award a different rate of interest from the statutory rate.

Judges:

Parker J

Citations:

[1984] 1 WLR 742, [1983] 3 All ER 598, [1983] 2 Lloyds Rep 434

Statutes:

Judgments Act 1838 17, Administration of Justice Act 1970 44(1)

Cited by:

Cited – Chubb and Another v Dean and Another ChD 24-Apr-2013
The court considered whether it had power to award a post judgment interest at a contractual rather than the statutory interest rate.
Held: There is no power of the court in this claim to add any amount beyond the statutory interest to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.519354

Re S and S: CoP 2008

Hazel Marshall QC J described the system of reconsideration under the 2007 Rules: ‘ Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, conveniently and cost effectively where it can, whilst preserving a proper opportunity for those affected by its orders to have their views taken into account in full argument if necessary. To that end, on receiving an application, the court can make a decision on the papers, or direct a full hearing, or make any order as to how the application can best be dealt with. This will often lead to a speedy decision made solely on paper which everyone is content to accept, but any party still has the right to ask for a reconsideration.
If this occurs, the court should approach the matter as if making the decision afresh, not on the basis that the question is whether there is a justifiable attack on the first order. The party making the application has not had a proper opportunity to be heard, and should be allowed one without feeling that s/he suffers from the disadvantage of having been placed in the position of an appellant by an order made without full consideration of his points or his views.’

Judges:

Hazel Marshall QC J

Citations:

[2008] COPLR Con Vol 1074

Statutes:

Court of Protection Rules 2007 89

Cited by:

Cited – Re MRJ JT and KT (Reconsideration of Order) CoP 10-Apr-2014
re_mjtCoP0414
The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 15 May 2022; Ref: scu.523691

Lane v Willis: CA 1972

An order for the medical examination of a party to an action is an invasion of personal liberty, and and should only be granted when it is reasonable in the interests of justice so to order, and when the refusal of a medical examination is alleged to be unreasonable. The Court has jurisdiction to grant a stay whenever it was just and reasonable so to do and could do so where the Plaintiff’s refusal was such as to prevent the just determination of the cause. Sachs LJ said: ‘[when] refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says that it is unreasonable and who applies for the order to show, on the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as counsel for the defendants very rightly conceded.’

Judges:

Sachs LJ

Citations:

[1972] I WLR 333, [1972] 1 All ER 430

Jurisdiction:

England and Wales

Cited by:

Cited – Government Communications Headquarters v Bacchus EAT 6-Aug-2012
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Claimant’s claims included disability discrimination claims arising out of anxiety and depression. The Claimant refused to co-operate with the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.463770

Pritchard v Westminster Bank Ltd: 1969

The court set aside a garnishee order attaching a debt and compelling immediate payment to the plaintiff, in circumstances that would prefer the plaintiff over all other creditors. Lord Denning said: ‘The general principle, when there is no insolvency, is that the person who gets in first gets the fruits of his diligence’ but ‘the court will not allow one creditor, however diligent he may be, to get an advantage over the others by getting in first with a garnishee order.’

Judges:

Lord Denning MR, Edmund Davies and Phillimore LJJ

Citations:

[1969] 1 All ER 999

Litigation Practice

Updated: 15 May 2022; Ref: scu.463352

Case LXXIX 36 Ass Pl 10: 1220

A retit descends to two co-parceners, one of themi takes all the rent, the other being under age ; and this sister who takes all the rent claims it to belong to herself alone ; then she is disseised of it by A. and she alone bringa an assise for it ; the tenant pleads that the other sister is living and not named in the writ ; by this plea the writ shall abate.

Citations:

[1220] EngR 447, (1220-1623) Jenk 41, (1220) 145 ER 31

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.461359

Case XXIV 1 H 7, 5, 9 Fees Del Judges: 1220

By the statute of 18 H. 6, the fees of the judges are to he paid out of the first money which the customers of the customs shall receive ; and this payment is to be made at a certain day : if the customers die before the day, their executors are liable for so much as they had received.

Citations:

[1220] EngR 31, (1220-1623) Jenk 167, (1220) 145 ER 109 (B)

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.460943

Powell v Chief Constable of North Wales Constabulary: CA 16 Dec 1999

Roch LJ said: ‘When an issue of public interest immunity is raised, the court’s first duty is to weigh the public interest in preserving the immunity against the public interest that all relevant information which might assist a court to ascertain facts relevant to an issue upon which the court is required to adjudicate should be before the court. See the passage from the speech of Lord Diplock in D v. NSPCC cited in Schiemann’s LJ’s judgment. Clearly the second public interest will be stronger in criminal cases than in civil cases because, normally, what will be at stake in criminal cases, namely the good name and liberty of the accused, will be weightier than what will be at stake in civil proceedings. No doubt there will be cases where, in order to carry out this balancing exercise, the judge will have to have disclosed to him the information for which the immunity is sought . . Once the balance comes down in favour of preserving the immunity from disclosure, then the court has no further discretion. Once that point is reached, it becomes a rule of law that the material or information must be excluded from the case, see Marks v. Beyfus and the passages from that case cited by Schiemann LJ.’

Judges:

Roch LJ

Citations:

Unreported, 16 December 1999

Jurisdiction:

England and Wales

Citing:

Leave – Powell v Chief Constable of North Wales Constabulary CA 20-Aug-1999
Application for permission to appeal by the defendant. The defendant had asserted a public interest immunity in refusing to disclose evidence of a witness since it would lead to the revelation of the identity of an informer.
Held: Leave was . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .

Cited by:

Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.443853

Regina v Essex County Council, ex parte EB: 1997

It was wrong to require a plaintiff to begin a claim in the employment tribunal where the possible remedies in the County Court were greater or different.

Judges:

McCullough J

Citations:

[1997] ELR 327

Jurisdiction:

England and Wales

Cited by:

Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 15 May 2022; Ref: scu.440288

Sears Plc v Sears Roebuck and Co and others: 1993

The court granted an Order against the plaintiff requiring it not to proceed with its case before the Trade Mark Registry until the determination of their High Court action. Lindsay J said: ‘the court should look to the two matters broadly and ask whether the matters are substantially the same.’

Judges:

Lindsay J

Citations:

[1993] RPC 385

Cited by:

Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 15 May 2022; Ref: scu.430835

Mabro v Eagle, Star and British Dominions Insurance Co Ltd: CA 1932

Scrutton LJ said: ‘In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence.’

Judges:

Scrutton LJ

Citations:

[1932] 1 KB 485

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 15 May 2022; Ref: scu.415954

Horner v Franklin: 1905

Citations:

[1905] 1 KB 479

Cited by:

Cited – Capper v Chaney and Another ChD 8-Jul-2010
Police had seized substantial sums of cash from the first defendant acting under the 2004 Act. The claimant said that andpound;250,00 was his and sought its return. The Commissioner argued that the current proceedings were an abuse of process.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.420679

Tigner Welsh London Company Limited v Spiro: 1992

Citations:

(1992) 126 SJ 525

Cited by:

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

Litigation Practice

Updated: 15 May 2022; Ref: scu.412293

Dubois v Hole and wife: 14 Jul 1708

If a bill is brought against Baron and Feme for a demand out of the seperate estate of the feme ; and the husband is beyond sea, and not amenable by the process of the Court ; yet, if the wife is served with a Subpoena, she must appear, and answer the plaintiff’s Bill.

Citations:

[1708] EngR 61, (1708) 2 Vern 613, (1708) 23 ER 1002

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.391905

Irish Shipping Ltd v Commercial Union Assurance Co Ltd: CA 1991

77 underwriters entered into separate insurances but on the same terms including one which obliged that underwriter to abide by any judgment obtained by the insured against the lead underwriter.
Held: The principle in Duke of Bedford applied even though not all those represented might know of the proceedings or might have an individual defence. Purchas LJ set out the procedure: ‘Although the judgment is to be binding upon those comprised in the class represented, protection is given to members of the class sued who may have been improperly joined in the class or who may have individual grounds of defence, since the judgment cannot be enforced until the plaintiff has complied with the requirements of Ord. 15, r. 12(3), (4) and (5). (3) However, the effect of rule 12(5) is merely to protect the member of the class sued from having the judgment enforced against him. The judgment is still valid for other purposes such as a counterclaim or other process in which that person may wish to rely upon allegations which will be denied to him by the findings of the judgment, the issues being res judicata for such purposes. It will be seen that there is nothing in the wording of the rule itself which would restrict the wide ambit in which the rule should operate, in line with the old Chancery practice; but there are now built-in safeguards to protect a member of the class who may have particular defences or may be able to distance himself from the class in other respects. This accords with the concept, as I see it, of the old rule, namely a broad rule of procedural convenience to be exercised with a wide but carefully used discretion.’

Judges:

Purchas LJ

Citations:

[1991] 2 QB 206

Cited by:

Cited – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.392982

Middlemiss and Gould v Hartley Corporation Pty Ltd: CA 1972

The defendant challenged enforcement of an arbitration award.
Held: The challenge had not been made in time, and the award was final and conclusive. Lord Denning MR said that an arbitration award is like a final judgment which should be enforced unless it can be shown to be invalid: ‘Once an Award has been made — and not challenged in the court — it should be entered as a judgment and given effect accordingly. It should not be held up because the losing party says he wants to argue some point or other or wants to set up a counterclaim or anything on that sort. He would not be allowed to do so in the case of a judgment not appealed from, nor should he do so in the case of an Award that he has not challenged. I am in agreement with what Diplock J said in [Margulies]: I think that it would be contrary to the purpose of section 26 of the Arbitration Act 1950 if in a case where the validity of the Award and the right to proceed upon it is beyond doubt, it should be given less effect than a judgment. In this case the judge was impressed by In Re Boks and Co and Peters, Rushton and Co Ltd [1919] 1 KB 491. But in that case the validity of the award was doubtful — very doubtful I would say — because of the illegality of the whole transaction. Naturally enough, no leave was given. But I think that Scrutton LJ went a good deal too far. He said at p497 that ‘this summary method of enforcing awards is only to be used in reasonably clear cases.’ I would put it just the opposite. I would say that it is to be used in nearly all cases. Leave should be given to enforce the award as a judgment unless there is real ground for doubting the validity of the award.’

Judges:

Lord Denning MR, dmund Davies and Stephenson LJJ

Citations:

[1972] 1 WLR 1643

Jurisdiction:

England and Wales

Cited by:

Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.384110

John Lyde v Thomas Rodd: PC 16 Feb 1710

In an action for damages against an attorney, for filing a bill in chancery without any authority , or even with the knowledge of the plaintiff, which was afterwards dismissing with costs, and the plaintiff obliged to pay those costs; he may lay his venue either in the county where the court of Chancery is held, or in the county where he actually paid the money.]

Citations:

[1710] EngR 37, (1710) 1 Bro PC 65, (1710) 1 ER 420

Links:

Commonlii

Jurisdiction:

Commonwealth

Litigation Practice

Updated: 15 May 2022; Ref: scu.391767

Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary: HL 1972

The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material . . but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived . . by the Crown . . or by anybody else’. It refers to the rule that certain evidence is inadmissible on the ground that to adduce it would be contrary to the public interest.
Lord Reid said: ‘There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence.’

Judges:

Lord Simon of Glaisdale, Lord Reid

Citations:

[1973] AC 388, [1972] 2 All ER 1057

Jurisdiction:

England and Wales

Citing:

Cited – Marks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .

Cited by:

Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Air Canada v Secretary of State for Trade HL 1983
The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.381618

Aspden v Seddon: CA 1874

Sir George Jessel MR explained the logical fallacy involved in one judge construing a document by reference to another judge’s construction of a different document.

Judges:

Sir George Jessel MR

Citations:

(1874) LR 10 Ch 394

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.375584

Union Bank of Finland Ltd v Lelakis: 1997

Proceedings had been served within the jurisdiction under submission to jurisdiction clauses contained in the guarantees upon which suit was brought against the defendant. However service abroad was objected to.
Held: Order 11, rule 9(4) was held to authorise service out of the jurisdiction with leave. It was sufficient to engage Order11 r.9(4) if the proceedings against the defendant were proceedings which could have been served out of the jurisdiction. They did not actually have to be so served.

Citations:

[1997] 1 WLR 590

Jurisdiction:

England and Wales

Cited by:

Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 15 May 2022; Ref: scu.372593

Jones v Randall: 7 Feb 1774

In an action upon a wager, whether a decree of the Court of Chancery would be reversed on appeal to the House of Lords, proof of the decree arid reversal is sufficient without shewing the previous proceedings below. – A copy of the judgment of reversal is admissible, and need not be stamped.

Citations:

[1774] EngR 42, (1774) 1 Cowp 17, (1774) 98 ER 944 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Jones v Randall HL 23-Apr-1774
Gaming – Declaration that there was a promissory note on a wager given to the piaintiff by defendant in case of a decree in the Court of Chancery should be reversed in the House of Lords, to which decree the person who had laid upon the reversal was . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 15 May 2022; Ref: scu.373898

In re Aktiebolaget Robertsfors and La Societe Anonymes des Papeteries de l’AA: CA 1910

The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices.
Held: The power was only exercisable in situations where service out of a writ was permissible under O.XI r.8 and so did not cover a summons to set aside an arbitration award.

Citations:

[1910] 2 KB 727

Jurisdiction:

England and Wales

Cited by:

Distinguished – In re Liddell’s Settlement Trusts CA 1936
The Court upheld an injunction issued against Mrs Liddell who was not a party to the proceedings and who had taken her children to the United States. When granting an injunction, the court should operate on the basis that it will be obeyed, and not . .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 15 May 2022; Ref: scu.372595

Jobserve v Skillsite: ChD 2004

Whilst the general principles of contractual construction applied to the construction of undertakings any ambiguity should be resolved in favour of the person giving the undertaking.

Judges:

Lewison J

Citations:

[2004] EWHC 661 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – Marketmaker Technology (Beijing) Co Ltd and Others v CMC Group Plc and Others QBD 24-Jun-2009
The claimants sought the committal of the fourth defendant for contempt having broken his undertaking to the court to provide details of his means.
Held: The terms of the undertaking were not ambiguous and could not be read in the way . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.347191

Gregory v Duke Of Brunswick and Vallance: 21 Jun 1843

The public, who go to a theatre, have a right to express thelr free and unbiassed opinions of the merits of the performers who appear upon the stage, but parties have no right to go to a theatre, by a preconcerted plan to make such a noise that an actor, without any judgment being formed of his performance, should be driven from the stage, and if two persons are shewn to have laid a preconcerted plan to deprive a person who comes out as an actor of the benefits which he expected to result from his appearance on the stage, they are liable in an action for a conspiracy. In an action for a, conspiracy to hiss an actor, the defendants cannot, under the genera1 issue, give in evidence libels published by the plaintiff, with a view of shewing that the plaintiff was hissed on account of those libels, and not by reason of any conspiracy of the defendants. In an action for a conspiracy, the defendants pleaded the general issue, arid also a special plea of justification, which plea was demurred to, and held bad by the Court, who gave judgment on it for the plaintiff and the award of venire was as well to try the issue joined ‘as, to inquire what damages the said plaintiff hath sustained on occasion of the premises whereof the Court hath given judgment for the said plaintiff’ Held, that on the trial at Nisi Prius, the defendant’s counsel, in addressing the jury, had a right to refer to the allegatlons contained in the special plea, and to comment upon them.

Citations:

[1843] EngR 859, (1843) 1 Car and K 24, (1843) 174 ER 696

Links:

Commonlii

Media, Torts – Other, Litigation Practice

Updated: 15 May 2022; Ref: scu.306553

The Duke Of Brunswick v Sloman: 24 Nov 1847

Where a defendant came to the court in a vexatious and expensive manner, to apply for an amendment that might have been obtained at chambers, his rule was discharged with costs, unless he would consent to pay the costs of the amendment.

Citations:

[1847] EngR 936, (1847) 5 CB 218, (1847) 136 ER 860

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.301552

Munden v Charles Frederick Augustus William, Dike Of Brunswick And Luneburg, Sued As Charles Frederick Augustus William D’Este, Commonly Called The Duke Of Brunswick: 8 May 1847

The defendant, having entered an appearance in person as ‘CFAW, Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick,’ delivered a plea to the jurisdiction, with an affidavit of verification, respectively intituled ‘CFAW, sovereign Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick.’ The plaintiff, treating the plea as a nullity, signed judgment. The court refused to set aside the judgment, without an affidavit of merits.-An affidavit with a jurat signed, ‘AB, a com’. andc,’ is sufficient.

Citations:

[1847] EngR 496, (1846) 4 CB 321, (1847) 136 ER 530

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.301112

Extraktionstechnik Gesellschaft fur Anlagenbau GmbH v Oskar: CA 1984

Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the Court should not make tentative assessments of the respective chances of success of the parties or the relative strengths of their good or bad faith, and should not on such an examination grant the defendant conditional leave to defend but should give unconditional leave to defend.

Citations:

(1984) 128 SJ 417, (1984) LS Gaz 1362

Jurisdiction:

England and Wales

Cited by:

Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.304586

Spottiswoode v Clark: 11 Dec 1846

A plaintiff seeking an injunction to restrain publication of documents must first demonstrate a title in them.

Citations:

[1846] EngR 1197, (1846) 1 Coop T Cott 254, (1846) 47 ER 844

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Prince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 15 May 2022; Ref: scu.303092

Gregory v The Duke of Brunswick and Hen Wellington Vallance: 26 Mar 1849

Were it appeared to the House that a mistake, committed by an officer of the Court below, in entering the judgment, of that Court, was made the ground of a writ of error, the arguments on the writ of error brought on such judgment were stopped, and the case was ordered to stand over, to allow the parties to apply to the Court below to amend the error.
The House made this order, after referring to the report of the opinions of the Judges of the Court below, as stated in the printed reports of the decisions of that court.

Citations:

[1849] EngR 422, (1849) 2 HLC 415, (1849) 9 ER 1149

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.298727

Goodall v Little: 11 Jan 1851

The answer, after denying the title of the Plaintiffs, set forth a schedule of documents in the possession of the Defendants, which it admitted related to the matters mentioned in the bill ; but it denied that, by those documents, the truth of such matters would appear to be otherwise than as stated in the answer ; and it submitted that the Defendants ought not to be ordered to produce the documents, and, in addition, that certain of the letters mentioned in the schedule ought not to be produced in this or any other suit, inasmuch as they were written either pending or in contemplation of the litigation in this suit, and with reference to the matters in this suit brought into controversy, and were written to one of the Defendants from his solicitor, or from an attorney who had been employed by him in a suit instituted by him in the Lord Mayor’s Court, to which the bill related, to the solicitors of that Defendant, or from one of the Defendants to another of them for the purpose of being communicated to the solicitor of the latter with a view to his defence in this litigation. Held, that such of the first class of letters as were written to the Defendants by their solicitors, in that character merely, were privileged, but that all the other documents and letters ought to be produced..

Citations:

[1851] EngR 102, (1850-1851) 1 Sim NS 155, (1851) 61 ER 60

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 15 May 2022; Ref: scu.296418

Farrow v Blomfield: 1860

A party to the action, being called as a witness on his own behalf, may be asked in cross-examination the contents of a letter which be has written, without producing the letter.

Citations:

[1860] EngR 62 (B), (1860) 1 F and F 653

Links:

Commonlii

Litigation Practice

Updated: 15 May 2022; Ref: scu.284901

William Brandt’s Sons and Co v Dunlop Rubber Co: HL 1905

The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the purchasers directly without joining its customer, the assignor.
Held: Though the assignor was not a party, there had been an equitable assignment. An equitable assignment of a chose in action requires no more than an expression of intention to assign, coupled with notice to the debtor, to impose on the latter an obligation to pay the assignee.
Lord Macnaghten said that an equitable assignment need not take any particular form and continued: ‘It may be addressed to the debtor. It may be couched in the language of command. It may be a courteous request. It may assume the form of mere permission. The language is immaterial if the meaning is plain. All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person. If the debtor ignores such a notice, he does so at his peril. If the assignment be for valuable consideration and communicated to the third person, it cannot be revoked by the creditor or safely disregarded by the debtor.’
No action should be dismissed for want of parties: ‘Strictly speaking, [the sellers], or their trustee in bankruptcy, should have been brought before the Court. But no action is now dismissed for want of parties, and the trustee in bankruptcy had really no interest in the matter. At your Lordships’ bar the Dunlops disclaimed any wish to have him present, and in both Courts below they claimed to retain for their own use any balance that might remain after satisfying Brandts.’

Judges:

Lord Lindley, Lord Macnaghten

Citations:

[1905] AC 454

Jurisdiction:

England and Wales

Cited by:

Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 15 May 2022; Ref: scu.276786

Regina v Liverpool City Council ex parte Newman: 1992

There was an application to discontinue proceedings after leave had been granted. Individual members of NALGO set out to guard against redundancy in the wake of the Council’s budget settling process. The challenge became academic when the Council rescinded a number of outstanding redundancy notices. Simon Brown J, having set out the general rule that costs follow the event on discontinuance where this is equated with defeat, added:

‘That, of course, was dealing with the position in an ordinary civil action. But I have no doubt that if judicial review proceedings are discontinued there is equally a general rule that that will be at the applicant’s cost. In other words the respondents will recover their costs, provided again that such discontinuance can be shown to be consequent upon the applicant’s recognition of the likely failure of his challenge.

The position, is, however, entirely different where, as here, the discontinuance follows some step which has rendered the challenge no longer necessary, which in other words renders the proceedings academic. That may have been brought about for a number of reasons. If, for instance, it has been brought about because the respondent, recognising the high likelihood of the challenge against him succeeding, has pre-empted his failure in the proceedings by doing that which the challenge is designed to achieve – even if perhaps no more than agreeing to take a fresh decision – it may well be just that he should not merely fail to recover his own costs but indeed pay the applicant’s.

On the other hand, it may be that the challenge has become academic merely through the respondent sensibly deciding to short-circuit the proceedings, to avoid their expense or inconvenience or uncertainty without in any way accepting the likelihood of their succeeding against him. He should not be deterred from such a cause by the thought that he would then be liable for the applicant’s costs. Rather in those circumstances, it would seem to me appropriate that the costs should lie where they fall and there should accordingly be no order. That might equally be the case if some action wholly independent of the parties had rendered the outcome of the challenge academic. It would seldom be the case that on discontinuance this court would think it necessary or appropriate to investigate in depth the substantive merits of what had by then become an academic challenge. That ordinarily would be a gross misuse of this court’s time and further burden its already over-full list.

In my judgment, this case is clearly one where this court cannot hope, in a short time, to discern what the likely outcome of the challenge would have been had it been litigated to a conclusion.

All that it is possible to say with certainty is that, without accepting the validity of the challenge the respondents, following the grant of leave, acted so as to render academic any continuing interest in the proceedings on the part of those who NALGO represent. In short, the case seems to me to fall clearly into the category of those in which it is appropriate to allow discontinuance without penalty to the applicants.’

Judges:

Simon Brown J

Citations:

(1992) 5 Admin LR 669

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.272879

Ahamath v Sariffa Umma: PC 1931

Lord Blanesburgh said: ‘It must be only under very exceptional circumstances that an issue dropped in the intermediate Court of Appeal and for that reason not dealt with or referred to by that court can be revived before this Board.’

Citations:

[1931] AC 799

Cited by:

Cited – New Zealand Meat Board and Another v Paramount Export Ltd and Another PC 26-Jul-2004
(New Zealand) Two meat exporting companies complained that the appellant’s failures had led to their own financial failures. The Board had changes its quota allocation system, which failed to allow any export quotas to the company.
Held: There . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.272791

Standing v Eastwood and Co: 1912

A court’s jurisdiction cannot be created by the contract or consent of the parties.

Judges:

Fletcher Moulton LJ

Citations:

[1912] 5 BWCC 268

Cited by:

Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 15 May 2022; Ref: scu.270356

Hildebrand v Hildebrand: 1992

The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after photocopying) that the photocopies themselves would now ‘fill a crate’, as the judge was told.
Held: Waite J summarised the legal background and procedures for discovery in the Family Division, referring to the Rules of the Supreme Court which governed civil proceedings in the High Court. He stated that they differ a little from that in other Divisions, in that the principal applicable rules were the 1977 Rules and that it had become standard practice to proceed to discovery by means of questionnaires. These partook of the character both of the request of discovery and of an interrogatory. In appropriate circumstances the court was exercising an inquisitorial jurisdiction: ‘underlying the whole basis of the exercise of the Court’s discretion under the amended section 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including amongst other things, the particular matters specified in section 25.’
The first issue was: ‘what must the husband now disclose of the box file copies and the Wallace Court copies?’ and the Judge held that the husband must disclose all of the documents in both categories.
Waite J held: ‘There is another important feature in the context of discovery which it is relevant to mention as applying in family cases. The jurisdiction is a paternal one, and, where financial proceedings are involved, the court is exercising not merely a paternal but also, in appropriate circumstances, an inquisitorial jurisdiction. Underlying the whole basis of the exercise of the court’s discretion under the amended s. 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including, among other things, the particular matters specified in s. 25. That was very clearly stated by the House of Lords in Livsey (formerly Jenkins) v Jenkins [1985] AC 424 . . (see the speech of Lord Brandon at p. 436).’

Judges:

Waite J

Citations:

[1992] 1 FLR 244

Statutes:

Matrimonial Causes Rules 1977 77(4)

Jurisdiction:

England and Wales

Citing:

Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .

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 . .
Applied – White v Withers Llp and Another QBD 19-Nov-2008
The claimant sought damages. The defendant firm of solicitors had represented the claimant’s wife in matrimonial procedings, and had used in evidence documents which the claimant said had been taken from him and were confidential.
Held: The . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Hildebrand – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – T v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 15 May 2022; Ref: scu.270364

Societe D’Informatique Service Realisation Organisation v Ampersand Software Bv: ECJ 25 Sep 1995

Court’s refusal to stay enforcement of foreign court order cannot be appealed against. Different jurisdictions not to be used to get advantage on enforcement.

Citations:

Ind Summary 09-Oct-1995, Times 25-Sep-1995

Statutes:

EC Treaty Articles 37 and 38, Brussels Convention 1968

Jurisdiction:

European

Citing:

Reference from – Societe D’Informatique Service Realisation Org v Ampersand Software Bv CA 29-Sep-1993
Foreign judgment registered here despite claim that it was obtained by fraud. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.89368

SmithKline Beecham Biologicals SA v Connaught Laboratories Inc: ChD 14 Jan 1999

Where a hearing had been aborted, documents which had not been read to, or by, the court, or referred to in open argument, remained not in the public domain but private. Confidential items referred to in skeletons but for aborted hearing retained confidence.

Citations:

Times 14-Jan-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.89349

Kuwait Airways Corporation v Iraqi Airways Co and Another: HL 25 Jul 1995

The service of a writ was effective even though it was on a junior employee, provided he was in apparent charge of the office. Sovereign immunity granted to corporation only if acts are governmental acts.

Citations:

Times 25-Jul-1995, Gazette 13-Sep-1995, Independent 15-Aug-1995

Statutes:

State Immunity Act 1978 14

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.82860

Linotype-Hell Finance Ltd v Baker: CA 25 Nov 1992

Stay of execution pending an appeal to the House of Lords was granted where the case was arguable and the defendant would be ruined if called upon to pay the full amount. Older cases on such matters are of little use.

Judges:

Otton LJ

Citations:

Gazette 25-Nov-1992, [1992] 4 All ER 887

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.83080

Kuwait Airways Corporation v Iraqi Airways Company and Another (No 2): HL 8 Feb 2001

Where a party sought to allege that a decision of the House had been obtained by the other party having presented perjured evidence, the correct remedy was not to petition the House direct for this purpose. Such a case would involve investigation of the facts for which the House was not an appropriate forum. The case should proceed by way of a fresh court action entirely.

Judges:

Lord Slynn of Hadley Lord Goff of Chieveley Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead

Citations:

Gazette 15-Feb-2001, Times 14-Feb-2001, [2001] 1 Lloyd’s Rep 485, [2001] 1 WLR 429, [2001] UKHL 72

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 15 May 2022; Ref: scu.82864

In Re Debtors (No 13-Misc-2000 and No 14-Misc-2000): ChD 10 Apr 2000

The powers given to a court to manage cases could allow the court to override the judgment of the parties in agreeing directions by consent where this was plainly good management to do so. Here the judge decided to transfer a between the parties to the High Court to be heard by the same court as dealt with other issues between the same parties.

Citations:

Times 10-Apr-2000

Jurisdiction:

England and Wales

Litigation Practice

Updated: 15 May 2022; Ref: scu.81841

Condliffe v Hislop and Another: CA 3 Nov 1995

The plaintiff, a bankrupt, pursued libel proceedings. He was being financed by his mother who had limited resources. She undertook to pay any order for costs, but the Master ordered a stay under the inherent jurisdiction of the court to prevent abuse of process unless the plaintiff provided security. The plaintiff appealed and the mother withdrew her undertaking. The judge reversed the order, holding that, even if there were jurisdiction, he would have exercised it in the plaintiff’s favour. The Court disposed of the case shortly on the facts on the basis that the mother’s position was one long since recognised as a lawful justification to maintain, sharing as she did a common interest with the plaintiff on the grounds of kinship. Security for costs orders are strictly limited to circumstances within rules, and no order for security for costs was appropriate, despite support for the action by a relative.

Citations:

Independent 09-Nov-1995, Times 03-Nov-1995, [1996] 1 WLR 753

Statutes:

Rules of the Supreme Court Order 23

Jurisdiction:

England and Wales

Citing:

Cited – McFarlane v E E Caledonia Ltd QBD 8-Dec-1994
The court can order a champertous non-party to pay a successful defendant’s costs of defending the claim.
A non-party unlawfully supporting an action was ordered to pay the costs of the defendant.
Held: It may not be necessary to every . .

Cited by:

Cited – Abraham and Another v Thompson and Others ChD 12-May-1997
The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th . .
Cited – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.79438