The Special Fixtures list for cases before the Court of Appeal Civil Division is created, and amendment made to procedures for listing cases to be called on at short notice, or placed on call. Cases should be assigned to the list where the court considered it might be taken by counsel with no previous knowledge of the case on half a day’s notice or longer as the court directed.
Times 27-Feb-2001
England and Wales
Updated: 08 May 2022; Ref: scu.84981
Sets up Senior Masters lists, floating lists (room 186) and for urgent applications.
Gazette 19-Feb-1992
England and Wales
Updated: 08 May 2022; Ref: scu.84944
A re-trial should be ordered in a civil matter where a defendant sought to bring new cogent evidence which raised a prima facie case that the court had been deceived by the other party at trial. In this case the evidence could not have been obtained easily in readiness for the first trial, and therefore the old standard as set out in Ladd v Marshall was established, but the interests of justice also required that a new trial be ordered.
Times 30-Mar-2001
England and Wales
Updated: 08 May 2022; Ref: scu.85021
The court handed down a table of revised listing windows and hear-by dates for the Court of Appeal. The timetable had now been reduced so that nearly all appeals would be held within 10 months, and most much more quickly. Applications for expedited hearings would be heard before a single judge. Applications to fix a date beyond the hear-by date would also be heard by a single judge, but would only be granted or compelling reasons.
Times 25-Jul-2001
England and Wales
Updated: 08 May 2022; Ref: scu.84978
A firm of solicitors wishing to withdraw, swore an affidavit to support their application. The affidavit included evidence of misbehaviour by the client. In error the affidavit was later sent to the wife’s solicitors, who sought its admission as example of the sort of behaviour about which she complained. It was admissible. In reality the calls did not seek legal advice and did not benefit from privilege. They were admissible.
Times 16-Mar-2001
England and Wales
Updated: 08 May 2022; Ref: scu.78803
Where a paper was subject to an injunction against publication of material, save where it had already found its way into the public domain, it was not to be required to resort to the court for permission or the Secret Intelligence Services for agreement or face an action for contempt for publishing, but rather had to make and live by its own assessment. This was necessary and appropriate in view of the need for the freedom of the press. The undertaking required the newspaper to be able demonstrate that the subject matter was already in the public domain, and that was enough to protect the SIS so far as this was appropriate.
Times 31-Jan-2001, Gazette 01-Mar-2001
England and Wales
Updated: 08 May 2022; Ref: scu.77993
Where an action was commenced before the new rules came into effect, but an application to strike out an action was issued and decided after they came into effect, that application could not be decided under the old rules. The new rules applied fundamentally different tests, and these tests had to be applied.
Assessment of respective party’s contribution to delay
Rix J
Times 19-Jan-2000, [2000] CLC 665, [2001] CP Rep 17, [2000] CPLR 142
Misrepresentation Act 1967 2(1), Civil Procedure Rules 3.4(2)(c)
England and Wales
Cited – JEB Fasteners Ltd v Marks, Bloom and Co CA 1981
Accountants prepared audited accounts knowing that the company was in financial difficulties, and the the accounts would be relied upon by the plaintiffs.
Held: The accountants owed a duty of care to the plaintiffs. They knew that they would . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.78032
Exceptional circumstances to support application to vary financial remedies order made on divorce.
Mostyn J
[2020] EWFC 72, [2020] WLR(D) 620
Matrimonial and Family Proceedings Act 1984
England and Wales
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.656379
A ‘Pending’ action for consolidation purposes includes a writ not yet served.
Gazette 08-Jul-1992
Appeal from – Arab Monetary Fund v Hashim and Others (No 4) CA 9-Sep-1992
A Court had jurisdiction to order the consolidation of actions even before their respective writs had been served. It became a ‘pending’ action under the Order on issue of the originating process. . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.77851
‘A claimant obtains a money judgment in the courts of a Commonwealth state which it then seeks to enforce by a common law action on the judgment in a second Commonwealth state. The issue arising on this appeal is whether the judgment thus obtained in the second Commonwealth state (‘a judgment on a judgment’) can be registered for enforcement here pursuant to the Administration of Justice Act 1920′
Males LJ
[2020] EWCA Civ 1604
England and Wales
Updated: 08 May 2022; Ref: scu.656499
Mr. Justice Meade
[2020] EWHC 3084 (Ch)
England and Wales
See Also – Koldyreva v Motylev and Others ChD 11-Sep-2020
. .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.656286
Tom Leech QC (sitting as a Judge of the Chancery Division)
[2020] EWHC 3112 (Ch)
England and Wales
Updated: 08 May 2022; Ref: scu.656291
HHJ Paul Matthews
[2020] EW Misc 23 (CC)
England and Wales
Updated: 08 May 2022; Ref: scu.655656
[2020] EWCA Civ 1400
England and Wales
Updated: 08 May 2022; Ref: scu.655563
An ‘independent’ reporter may not interview the ward without the court’s leave.
[1983] 1 All ER 1097, [1983] 1 WLR 416
England and Wales
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.588207
Evidence of international law
Gray J
[2003] EWHC 1783
England and Wales
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.566199
The issue in this appeal is whether the judge was right to order a speedy trial of part of a hastily issued claim.
Lord Justice Vos
[2015] EWCA Civ 480
England and Wales
Updated: 08 May 2022; Ref: scu.547068
A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he or she is, shall unless the Court or Judge otherwise orders, be deemed good service on such defendant.’
Held: Judgment was set aside because the writ had been served at a time when the defendant was of unsound mind.
Grove J said: ‘I think the principle of this rule is that the service should be on some person qualified to act for the lunatic or most likely to know to whom the fact of service ought to be communicated. The manager of the lunatic’s business might be ignorant of these matters. Where the writ is served in such a manner that it may probably never reach the lunatic, I do not think it can be valid and proper service. The plaintiffs may reasonably be required to go through the formalities which may give the friends of the lunatic a proper opportunity of appearing.’
He also considered the actions of the defendant’s solicitors, saying: ‘As for the objection that the solicitors are not qualified to appear for the lunatic, there is no doubt that they were authorized to act when she was first taken ill, and I think that the retainer would extend to enable them to take such steps as became necessary in consequence of her lunacy.’
Grove J
(1883) 10 QBD 471
Supreme Court of Judicature Act 1873
England and Wales
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.542245
The court considered the privileged status of statements made in proceedings under the Children Act 1989 together with the existence of exceptions to that status.
Held: Sir Thomas Bingham MR described the practice in family concilations: ‘The practice of conciliation has grown and evolved in various ways over the last 10 years, in court and out of court, voluntary or directed, and extends over many parts of the country. Resolution of disputes over children by parents locked in acrimony and controversy has gradually but perceptibly taken over from efforts to preserve the state of the marriage of the parents. Conciliation of parental or matrimonial disputes does not form part of the legal process but as a matter of practice is becoming an important and valuable tool in the procedures of many family courts. This underlines the great importance of the preservation of a cloak over all attempts at settlement of disputes over children. Non-disclosure of the contents of conciliation meetings or correspondence is a thread discernible throughout all in-court and out-of-court conciliation arrangements and proposals.
Conclusion
These practices and expressions of opinion cannot of course be regarded as authoritative statements of the law. But in this field as in others it is undesirable that the law should drift very far away from the best professional practice. The practice described above follows the law in recognising the general inviolability of the privilege protecting statements made in the course of conciliation. But it also recognises the special regard which the law has for the interests of children. In our judgment, the law is that evidence may not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child.
We wish in closing to emphasise three points. (1) Even in the rare case which falls within the narrow exception we have defined, the trial judge will still have to exercise a discretion whether or not to admit the evidence. He will admit it only if, in his judgment, the public interest in protecting the interests of the child outweighs the public interest in preserving the confidentiality of attempted conciliation. (2) This judgment is concerned only with privilege properly so called, that is, with a party’s right to prevent statements or documents being adduced in evidence in court. It has nothing to do with duties of confidence and does not seek to define the circumstances in which a duty of confidence may be superseded by other public interest considerations: cf. W. v. Egdell [1990] Ch. 359 . (3) We have deliberately stated the law in terms appropriate to cover this case and no other. We have not thought it desirable to attempt any more general statement. If and when cases arise not covered by this ruling, they will have to be decided in the light of their own special circumstances.’
Sir Thomas Bingham MR
[1993] Fam 231
England and Wales
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.521205
A property developer sued his solicitor for negligent advice on the purchase of a property. The solicitor wished to rely on previous retainers, in which the developer had ignored advice, so as to challenge the developer’s assertions that, with proper advice, the developer would not have purchased the property.
Held:
Dillon LJ, adopted the formulation of the scope of waiver set out by May J at first instance: ‘A client who sues his solicitor invites the court to adjudicate the dispute and thereby, in my judgment, waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law including the law of evidence. I suspect that at the fringes each case will depend on its own facts. Normally the waiver will extend to facts and documents material to the cause of action upon which the plaintiff sues and the defendant’s proper defence to that cause of action. The bringing of a claim for negligence in relation to a particular retainer will normally be a waiver of privilege and confidence for facts and documents relating to that retainer, but not without more for those relating to other discrete retainers’ Dillon LJ then added: ‘The waiver can only extend to matters which are relevant to an issue in the proceedings and, privilege apart, admissible in evidence. There is no waiver for a roving search into anything else in which the Solicitor or any other solicitor may have happened to have acted for the clients. But the waiver must go far enough, not merely to entitle the plaintiff to establish his cause of action, but to enable the defendant to establish a defence to the cause of action if he has one. Thus, it would extend to matters under earlier retainers, as in the hypothetical example I have given, which established that the experience of the client, was, to the knowledge of the solicitor, such that the solicitor was not in breach of duty as alleged.’
Russell LJ expressed the test: ‘by bringing civil proceedings against his solicitor, a client impliedly waives privilege in respect of all matters which are relevant to the suit he pursues and, most particularly, where the disclosure of privileged matters is required to enable justice to be done. This is another way of expressing the view that May J expressed in his judgment in the passage to which Dillon LJ has referred.’
Farquharson LJ said: ‘For my part, I would have difficulty in holding that the defendants should, as a matter of principle, be prevented from adducing evidence which is relevant to that issue. A proper interpretation of the waiver in this case is, in my judgment, one that embraces not only the documents and advice arising from the Heligan Manor transaction, but also documents or information otherwise subject to privilege which are relevant to the issues between the parties and it would be unfair to exclude.’
Dillon, Russell, Farquharson LJJ
[1993] 1 WLR 94
England and Wales
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Hayes v Dowding 1996
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.521200
In the absence of a presently enforceable right there was nothing in the court rules for discovery to compel a party to take steps that would enable that party to acquire such a right in the future. Documents of a subsidiary were not in the ‘power’ of its parent company for the purposes of disclosure in litigation, simply by virtue of the latter’s ownership and control of the group. Lord Diplock defined the term ‘power’ to mean: ‘a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.’
It is the duty of each director to form an independent judgment as to whether acceding to a shareholder’s request is in the best interests of the company.
Lord Diplock
[1980] 1 WLR 627
England and Wales
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.519363
Whilst the judge was delivering her judgment in a child custody dispute the father physically attacked the mother across the well of the court, and a court clerk who came to assist her. He now faced contempt proceedings after being sentenced to imprisonment by the Crown Court.
(Orse: Chelmsford County Court v Ramet)
Sir James Munby P FD
[2014] EWHC 56 (Fam), [2014] 2 FLR 1084
England and Wales
Cited – Ali v Esure Services Ltd CA 19-Dec-2011
The court was asked as to its jurisdiction to make a committal order for contempt after a false statement was lodged in County Court proceedings transferred to the High Court.
Held: Although contempt proceedings have to be brought in the High . .
Cited – OB v The Director of The Serious Fraud Office CACD 2-May-2012
The court considered an application by the defendant for leave to appeal to the Supreme Court, noting that section 13 of the 1960 Act did not provide for such a right after the 2006 Act.
Held: The words could not themselves be construed to . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.520130
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
[1836] UKPC 9, [1838] 2 Moo PCC 480
England and Wales
See Also – Butlin v Barry 5-Sep-1837
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
See Also – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.463555
The plaintiff, who had been in the care of the respondent authority as a child, brought proceedings against the local authority for negligence in their care of him. His application for disclosure of the case notes and records of his period in care had been refused by Boreham J.
Held: His appeal failed. The material was privileged. Lord Denning MR said that In re D ‘should now be regarded as of general application: not only in wardship or custody proceedings: but also in actions such as the present – for personal injury.’
Lord Denning MR, Megaw and Dunn LJJ
[1980] 1 WLR 1549
England and Wales
At Court of Appeal – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.467127
A child was made subject of wardship application after her half sister made allegations of sexual abuse against their father. In dealing with these proceedings, he sought disclosure of the records prepared by the social workers in the first case. He now appealed against a refusal of an order for their production.
Held: The father’s appeal failed. In general, such discovery is inappropriate, but the automatic refusal of such requests should be reconsidered. In an appropriate wardship case, a Family Division judge has the power to order the local authorities social workers’ records about a child. To hold otherwise would deprive parties of a proper recourse to legal action. The court might first need himself to inspect such records to assist any decision about whether they might assist.
Butler-Sloss LJ said: ‘On the application of a party to the proceedings for disclosure of relevant documents the judge has a duty to weigh up competing public interests . . It is for the court on the application to decide whether the public interest in protecting the social work records overrides the public interest that the party to the proceedings should obtain the information he or she is seeking in order to obtain legal redress.’ and
‘For my part, I consider that the strict approach developed in 1970 and followed in subsequent decisions must be relaxed in the light of the current legislation and modern opinion about greater openness in society. The DHSS issued guide-lines on the rights of access of the subject of social work files who had been in care in a series of directives from 1983. The Access to Personal Files Act 1987, which gives rights to access to certain documents, is another pointer in the same direction. The law of evidence must move with the times. None of this invalidates the general principle of public interest immunity, but it will undoubtedly have an effect on the balancing operation to be conducted by the judge.’
Butler-Sloss LJ, Lloyd and Nicholls LJJ
[1990] 2 FLR 36
England and Wales
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.467125
The plaintiff gave the defendant a cheque for andpound;40,000 with which to buy a house for P. D applied the money to his own purposes, and P claimed. The defendants were required to swear affidavits setting out full details of the whereabouts of money which the plaintiff alleged had been stolen from him. D sought the protection of the privilege against self-incrimination, saying that though he might be protected by section 31 of the 1968 Act, he might also face a charge of forgery.
Held: The defendant could not rely on the privilege. The alternate charge which he might face was very little different to the theft charge, and he would be protected by section 31. The requirement to say what had become of that money had no bearing on his guilt of either theft or forgery.
The compulsion to answer questions as to the whereabouts of the money added nothing to the existing risk of prosecution for theft. The first defendant had already admitted that he had made out a blank cheque signed by the plaintiff in favour of the second defendant. In the light of that admission, any further question as to what happened to the money did not increase the pre-existing risk of prosecution under the Theft Act.
Stephenson LJ said: ‘But if an attempt were made to introduce any statement made by the first defendant in compliance with this order into proceedings for theft and forgery, the court would have to consider the substance of the proceedings and the real reason why he had not been excused from compliance with the order, and then the proceedings would be seen to be in substance proceedings for an offence under the Theft Act, and so he could not have been compelled to incriminate himself except for an offence under that Act. Accordingly, any such statement would not be admissible in evidence against him in the proceedings.’ and
‘I agree with the judge that ‘it is unlikely that there will be a charge of forgery,’ but he does not seem to have had in mind a prosecution charging both theft and forgery. I agree also that it is ‘often possible to find another offence outside the Theft Act,’ but I do not see how that stratagem could be prevented from defeating Section 31 by construing the section in a way which ignores or contradicts the reference to ‘an offence under this Act’ where those words first occur in subsection (1). In my opinion Mr. Slowe is right in construing the subsection as restricting its operation to incrimination of offences under the Act as well as to proceedings under the Act. However, where, as here, the substance of any foreseeable proceedings is a prosecution under the Theft Act, Section 31 applies and cannot be defeated.’ He expressed the principle as: ‘There must be a real risk of incrimination or material increase of an existing risk.’
Griffiths, Stephenson, Kerr LJJ
[1982] 1 WLR 513, [1982] 2 All ER 60
England and Wales
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.462553
The parties had fought and had decided their financial relief following the divorce. The revenue now applied for disclosure of the transcripts so as to settle a tax dispute with the husband.
Held: The application failed: ‘Paraphrasing the law is always risky but I think the effect of it can be shortly stated thus. As a general rule documents and other evidence produced in ancillary relief proceedings (now called financial remedy proceedings) are not disclosable to third parties outside the proceedings save that exceptionally and rarely and for very good reason they can be disclosed with the leave of the court. The fact that the evidence may be relevant or useful is not by itself a good enough reason to undermine the rule.
No one would seriously argue with the proposition that it is in the public interest for the right amount of tax to be paid by taxpayers. Further there is no doubt that the documents sought in this case would be relevant to the proceedings before the First Tier Tribunal Tax Chamber and, for obvious reasons might well be of assistance to them.’ No exceptional reasons applied here to justify a departure from that rule.
‘If, of course the husband himself wishes to rely upon documents/evidence he produced during the hearing in front of me he may have leave to do so but in that event all relevant material must be produced to the Tribunal not just highlights he selects which support his case.’
Coleridge J
[2012] EWHC 1448 (Fam), [2012] WLR(D) 165, [2012] 2 FLR 1119
England and Wales
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.460531
Surveillance took place over a long period of time but was not disclosed until a short time before a settlement meeting and trial. The claimant objected.
Held: The court identified this as a form of trial by ambush. From the time of the application before her, there remained only 31 days to the trial.
Swift J said: ‘There was no reason, in my judgment, why the footage which had been taken in August 2009, should not have been disclosed earlier.’ and ‘Once all the material of the best quality available has been obtained, it will be necessary to obtain statements from the claimant and his witnesses. In addition, the experts (i.e. care, employment, psychiatrist, urologist and orthopaedic experts) will need to see and comment on the footage. Mr. Weir has submitted that it is necessary for the experts to see the claimant’s comments on the footage at the same time.
Mr. Audland said that that is not necessary. In my judgment, it would only be right for the expert witnesses to see all the additional material together. Quite apart from anything else, this would mean that they would only have to deal with the papers on one occasion rather than on two separate occasions. Addendum reports would then have to be obtained, any discussions would have to take place and any necessary amendments to joint reports: all this within the 31 days left before trial.
It seems to me that to fit all this work into the time available before trial would be extremely difficult, even without the problems which have been described by Mr. Marks. They would, in my view, render the exercise completely impossible. Even if the exercise were capable of being done, it would be a distraction from the ordinary preparations from trial and from considerations of the Part 36 offers and possible settlement of the case.’
Swift J
[2009] EWHC 3438 (QB)
England and Wales
Cited – Sally Rall v Ross Hume CA 8-Feb-2001
A surveillance film of a claimant was a document within the rules. The rules make no specific provision for the admission of such material for the purposes of cross examination of a claimant. A party proposing to use such material was under all the . .
Cited – Douglas v O’ Neill QBD 9-Feb-2011
The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
Held: The defendant’s application succeeded. There had been no breach of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.440069
The plaintiff film companies accused the defendants of pirating their films. They obtained Anton Piller orders which required the defendants to permit the plaintiffs to enter their premises to inspect and remove any unauthorised films, and three defendants were to disclose:
(a) cassette supplier and customer details;
(b) invoices; and
(c) the whereabouts of pirate cassettes where known.
Peremptory orders for discovery and interrogation required instant obedience and the defendants were informed by the Penal Notice on the order that disobedience would expose them to penal consequences.
Held: The order was extraordinary, and the party interrogated had no opportunity for legal advice before deciding whether to comply. Accordingly those parts of the orders requiring disclosure contrary to the well-established principle of privilege against self-incrimination were expunged.
Lord Russell of Killowen said that he would welcome legislation along the lines of section 31 of the Theft Act 1968: ‘[i]nasmuch as the application of the privilege in question can go a long way in this and other analogous fields to deprive the owner of his just rights to the protection of his property’.
Lord Justice Templeman, Lord Russell of Killowen
[1980] 2 All ER 273, [1982] AC 380
England and Wales
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Appeal From – Rank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
Cited – Sociedade Nacional de Combustatives de Angola UEE v Lundqvist CA 1990
Large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates. A Mareva injunction had been granted. The defendant objected to being required to disclose the extent of his foreign assets saying that such . .
Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.416381
The jurisdiction to make an asset freezing injunction applies though the defendant is not a foreigner or foreign based. Its essence is to reduce the risk of the defendant removing his assets from the jurisdiction and so stultifying any judgment given by the courts in the action.
[1980] 1 WLR 1259
England and Wales
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.416379
Debt upon an obligation of six hundred pounds, dated 4th September, 37 Eh. conditioned, that if he were seised in his demesne as of fee, the (lay of the obligation made, of such copyhold lands in Sybton-Docking, and if the said lands be discharged of all incumbrances made by him, except the estate and title of jonture of his wife Elizabeth, that the the obligation should be void. The breach is assigned in hoc, that the defendant, before the obligation made, had surrendered those lands apud Sybton praeclict. to the use of Elizabeth his wife for life. The defendarrt pleaded, that he did riot surrender it modo et format The plaintiff sur-rejoins, quod sursum reddidit apud Sybton-Docking, modo et forma, and co and thereupon a venire facias was awarded to Sybton, and tried for the plaintiff, and judgment accordingly. Error was now thereof brought.
And the first error assigned was, because the veniire facias is from Sybtori, where it ought to have been from Sybton-Docking; for so is the rejoinder, which makes the issue.
[1653] EngR 2235, (1653) Cro Eliz 762, (1653) 78 ER 993
England and Wales
Updated: 08 May 2022; Ref: scu.414542
Application for juridical review of judge’s action rejecting claim in negligence
[2009] EWHC 2295 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.375172
Where the words of a statute are clear, it is not open to the court to limit, change or disregard that meaning on the ground that the result of the legislation as drafted would be anomalous or absurd.
Lord Simon of Glaisdale said as to an argument based on the anomaly of the result of a statutory interpretation: ‘A court would only be justified in departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such an anomaly, could not have been prepared to accept it in the interests of a supervening legislative objective; (3) the anomaly can be obviated without detriment to the legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly.’ and ‘But it is essential to bear in mind what the court is doing. It is not declaring Parliament has said X, but it obviously meant Y, so we will take Y as the effect of the statute. Nor is it declaring Parliament has said X having situation A in mind, but if Parliament had had our own forensic situation B in mind, the legislative objective indicates that it would have said Y. So we will take Y as the effect of the statute as regards B. What the court is declaring is Parliament has used words which are capable of meaning either X or Y, although X may be the primary natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words. So, too, when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct, these should coincide, so that if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory objective, justice, anomaly, etc) which throw light on what the draftsman meant to say.’
Lord Scarman said: ‘Mr. Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the ‘anomalies’ which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat . . If the words used by Parliament are plain, there is no room for the ‘anomalies’ test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake.’
Viscount Dilhorne said: ‘It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it ‘according to the intent of them that made it’ (Coke 4 Inst. 330).
If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature.
The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8 (2) read as if it said: ‘who also took part and at the date of the dismissal were taking part in that action.’ As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide. ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do’ said Lord Mersey in Thompson v. Goold and Co. [1910] A.C. 409, 420. ‘we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself’ Said Lord Loreburn L.C. in Vickers, Sons and Maxim Ltd. v. Evans [1910] A.C. 444, 445.
. . The existence of anomalies, if they exist, cannot limit the meaning to be attached to clear language in a statute.’
Lord Simon of Glaisdale, Lord Scarman, Viscount Dilhorne
[1978] 1 WLR 231, [1978] 1 All ER 948
England and Wales
Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.377518
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary judgement, but now appealed reversal of that by the Court of Appeal who had admitted new evidence.
Held: The House adapted the principle in Ladd -v- Marshall to appeals from summary judgments. On an application for leave to withdraw an admission a court will require an explanation for the making of the admission: ‘The explanation must be a sensible one based on evidence of a solid and substantial character.’ Here, leave to withdraw an admission was not permitted after judgment where the plaintiffs had spent two years and a great deal of money enforcing the judgment.
Lord Bridge observed: ‘The primary and most important question for decision by your Lordships’ House is whether, on hearing an appeal against a summary judgment given in favour of a plaintiff . . the Court of Appeal has an unfettered discretion to receive further evidence or whether it may only do so on special grounds.’ and ‘In other words, the judge can only give judgment for the plaintiff if satisfied that there are no such merits on the defendant’s side as to warrant giving leave to defend. In the ordinary use of language, a hearing leading to the conclusion that there are no merits to be tried is just as much a hearing ‘on the merits’ as a full scale trial of disputed issues’ and ‘In the situation arising on an appeal to the Court of Appeal from a summary judgment, the application of these conditions [in Ladd v Marshall ] and perhaps the conditions themselves will require some modification. It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required in preparing for trial.’
Lord Bridge
[1982] 1 WLR 1123, [1982] 3 All ER 129
England and Wales
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .
Cited – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.372632
Collins J considered the circumstances under which a party could withdraw a concession previously given. Collins J said: ‘It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact . . the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession as appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate . .
We can summarise the position as follows:- . .
(3) If the HOPO wishes to withdraw any concession made: in a refusal letter or explanatory statement, he must inform the appellant or his advisor as soon as possible and it will be for the adjudicator to decide if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand . .
(6) A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession’
Collins J
Unreported, 18 May 2000
England and Wales
Cited – NR (Jamaica) v Secretary of State for the Home Department CA 5-Aug-2009
The appellant had been convicted of supplying drugs, and ordered to be returned to Jamaica after her sentence. She had resisted saying that, as a lesbian, she would be persecuted if returned. The respondent conceded that the IAT had made an error of . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.372329
The defendant had got possession of his opponent’s papers, including certain privileged material, by a trick. A party to an action will not be allowed to use a document obtained by stealth or a trick. Warner J said, referrig to Ashburton v Pape: ‘that was not an isolated decision but is illustrative of a general rule that, where A has improperly obtained possession of a document belonging to B, the court will, at the suit of B, order A to return the document to B and to deliver up any copies of it that A has made, and will restrain A from making any use of any such copies or of the information contained in the document.’ Had the plaintiff applied in time for relief against the defendant on the lines of that granted in Lord Ashburton v Pape ‘I have little doubt that . . they would have been held entitled to it.’
Warner J
[1982] 1 Ch 431
England and Wales
Cited – 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. . .
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.375113
Wood J said: ‘There was, however, one further matter of law to which I must refer. The Rank Film Distributors case was argued in the House of Lords in March 1981: see [1981] 2 All ER 76, [1981] 2 WLR 668. The issue was the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance. The appeal was dismissed and the House of Lords held that the privilege against self-incrimination was capable of being invoked.
In the present case there was prima facie evidence before me that it might be alleged that the respondent husband had committed perjury. I, therefore, had to consider whether some provision should be made in the order to protect him against self-incrimination. I was referred to Rice v Gordon (1843) 13 Sim 580, 60 ER 225. The report of this case, which was decided in November 1843, is very short and I set it out in full:
‘In this case an indictment was pending, against the Defendant for perjury committed in the cause; and on Mr Cole, for the Plaintiff, moving for the production of documents which the Defendant had admitted in his answer to be in his custody, Mr Chandless contended that he was not bound to produce them, because they tended to support the indictment; and cited Paxton v Douglas ((1809) 16 Ves 239, 33 ER 975). The VICE-CHANCELLOR [Sir L Shadwell] said that in the case cited the offence was committed prior to the institution of the suit; but, in the present case, it was committed in the very cause in which the motion was made; and that, if he were to refuse the motion, he should be holding out an inducement to a Defendant to commit perjury in an early stage of the cause, in order to prevent the Court from administering justice in the suit. Motion granted.’
That case was cited by Templeman LJ in the Rank Film Distributors case without criticism (see [1980] 2 All ER 273 at 290, [1980] 3 WLR 487 at 518). In the present case the only possible criminal offence that is disclosed is the prima facie evidence of perjury, and in the circumstances I did not require any special clause to be inserted in the order to encourage the respondent husband to invoke the principle of privilege against self-incrimination.’
Wood J
[1982] 1 WLR 669, [1982] 2 All ER 342
England and Wales
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.375112
The court acknowledged how serious it was for a foreigner to be troubled by English proceedings, and therefore ‘the Court ought to be exceedingly careful before it allowed a writ to be served out of the jurisdiction’.
(1885) 29 Ch D 239
England and Wales
Cited – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.349048
Sir Henry Brooke considered the requirements in the CPR for requesting permission to appeal: ‘When the CPR introduced a well-nigh universal regime for permission to appeal-see CPR r.52.3(1) -the rule makers introduced a tough regime in order to avoid the progress of appeals being delayed while leave to appeal was being sought from a lower court. Recommendation 14 on p.142 of the Bowman Review of the Court of Appeal (Civil Division) (September 1997) was to the effect that:
‘An application for leave to appeal should continue to be made to the court below either at the moment of decision or subsequently, provided it can be placed before the judge who made the decision against which it is sought to appeal.’
CPR r.52.3(2)(a) , however, provided more prescriptively that:
‘(2) An application for permission to appeal may be made –
(a) to the lower court at the hearing at which the decision to be appealed was made.’
The practice direction to CPR Pt 52 states in para.4.6:
‘An application for permission should be made orally at the hearing at which the decision to be appealed against is made.’
4 If it was not made at that hearing the judge in the lower court had no power to grant permission to appeal, and any permission he purported to grant was a nullity (see Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162 ).’
Sir Henry Brooke
[2008] CP Rep 17
England and Wales
Cited – In re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.347504
The names of two Defendants having been inserted in the writ of summons, separate proceedings were taken against each : Held, irregular.
[1834] EngR 811, (1834) 1 Bing NC 71, (1834) 131 ER 1044 (B)
England and Wales
Updated: 07 May 2022; Ref: scu.317487
Since the rule (Hil 4 W. 4) that the entry of proceedings on the record for trial, or on the judgment roll, shall be taken to be, and shall be, the first entry of the proceedings upon record, it is not necessary to enter upon the Nisi Prius record a plea in abatement and judgment of respondent ouster thereupon.
[1835] EngR 947, (1835) 4 Ad and E 90, (1835) 111 ER 721
England and Wales
Updated: 07 May 2022; Ref: scu.316455
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. Money so recovered was . . received to the use of the successful party by authority of law. If any error was committed in the former proceeding, still the plaintiff is estopped from proving it after failing to do so at that time. If this were otherwise, the rights of parties could never be settled by the most solemn proceeding.’
Lord Denman CJ
[1839] EngR 647, (1839) 10 Ad and E 82, (1839) 113 ER 32
England and Wales
Applied – Marriott v Hampton KBD 1775
The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to . .
Cited – John Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.311179
The principle upon which the Court acts, in directing substituted service, is to sanction such service as affords a reasonable certainty that the Defendant will know of it.
In a suit by infants, natural-born subjects and out of the jurisdiction, by their next friend, to which their father and mother (the latter being also out of the jurisdiction) were Defendants, service, under an order, of a bill on the solicitor who had acted for the mother in the institution of a suit in the Ecclesiastical Court against the father, waa held to be good service.
The Infants, who were in the mother’s custody, under an agreemento restore them to the father on B given day, which she refused to do, by their bill prayed that they might be restored to their father, to be educated in England. Held, that the Court had jurisdiction to take cognizance of the case, arid would interfere in the manner most for their benefit, provided it could see the mode of enforcing its order.
Incompetency of the Courts in France to modify the legal conditions of marriage of English subjects there resident.
[1854] EngR 468, (1853-1854) 19 Beav 237, (1854) 52 ER 340
England and Wales
Updated: 07 May 2022; Ref: scu.293325
A witness, an accomplice in a criminal offence, who has received the pardon of the Crown under the Great Seal for that offence, has no privilege of refusing to answer questions relating to the offence, which may tend to criminate himself. He is bound to answer.
[1860] EngR 170, (1860) 2 F and F 157, (1860) 175 ER 1004
England and Wales
Appeal from – Regina v Boyes 27-May-1861
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.285009
The High Court at Calcutta, at the instance of the Appellant’s Counsel, agreed to confine the decision of that Court to one point, with an undertaking that no appeal to Her Majesty in Council should be made from the decree. Notwithstanding such undertaking, an appeal was brought to England. The High Court certified in the record the undertaking.
Held: the Judicial Committee, on a preliminary objection being taken to the hearing, on the ground of the incompetency of the appeal, said that such undertaking precluded an appeal.
[1871] EngR 36, (1871) 14 Moo Ind App 203, (1871) 20 ER 763
Updated: 07 May 2022; Ref: scu.280217
Morgan QC
[2007] EWHC 3461 (Ch), [2007] All ER (D) 89
England and Wales
Appeal from – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.279798
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a hundred years and it had probably never applied to tort cases.
Held: The court considered the doctrine of circuity of action ‘it is no good trying to get something which immediately afterwards you are going to have to hand back’ and applied it.
Geoffrey Lane LJ
[1980] QB 124
England and Wales
Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.280275
Millett J commended a council for moving for a quia timet injunction in these words: ‘If they have good grounds for thinking that in any given case compliance with the law will not be secured by prosecution, they are entitled to apply for an injunction. Counsel for the defendant criticised the council for threatening to seek a quia timet injunction even before any threatened breach of the law had occurred and when therefore no prosecution was possible. In a proper case I do not consider that that is a ground for criticism but for commendation. It must be an eminently sensible and convenient manner of proceeding.’
Millett J
[1988] 1 CMLR 397
England and Wales
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.277381
Fletcher Moulton LJ considered the rule allowing a case to be struck out as an abuse of process: ‘Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless . . To my mind it is evident that our judicial system would never permit a plaintiff to be `driven from the judgment seat’ in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad.’
Cozens Hardy MR said that a declaration might be granted where it would ‘guide (the parties’) action in the future.’
Fletcher Moulton LJ, Cozens Hardy MR
[1911] 1 KB 410, [1912] 1 Ch 158
England and Wales
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.277522
The defendant requested entry of summary judgment against itself under section 8(3) to limit the maximum damages to andpound;10,000. If it went to trial the defendant might argue qualified privilege. To have jurisdiction it had to appear to the court that ‘there is no defence to the claim that has a realistic prospect of success, and that there is no other reason why the claim should be tried’. Accordingly, in its application under s.8(3), the defendant said it was waiving the defence of qualified privilege (although it was also saying that that defence would, if pursued, have a realistic prospect of success). The claimant said this was an abuse of the court’s procedure to be prepared to waive a defence for one purpose, but, if it is unsuccessful, then to go back and rely on it, if there is a full trial.
Held: Popplewell J accepted that: ‘if summary trial is the appropriate way of dealing with this expeditiously and inexpensively, there is no reason why the defendant should not be allowed to say: ‘We will accept that there is no defence to this action for the purpose of this summary disposal application’.’
Popplewell J
[2001] EMLR 760
England and Wales
Cited – Adelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.278229
The fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. The court considered what should happen to cases where leave to apply for judicial review had been granted, but the decision had become academic before the hearing came on. Scott Baker J said: ‘The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
It would ordinarily be irrelevant that the claimant is legally aided.
The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs.
At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs and the conduct of the parties.
In the absence of a good reason to make any other order the fall back position is to make no order as to costs.
The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.’
Scott Baker J
(2001) 4 CCLR 258
England and Wales
Cited – Dumbuya, Regina (on the Application of) v London Borough of Lewisham Admn 16-Jul-2008
. .
Cited – E, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.272878
The claimant sought damages from the police, saying that the way they had handled the witness protection programme had led to him suffering injury.
Held: The action which had been struck out by the court below should be restored, because even though ‘the story of the common law would not therefore appear to promise a favourable outcome to the present claim’ and ‘the claimant’s case in the present state of the law ( was) ‘fraught with difficulty’ the court did not regard it ‘as inevitably doomed to failure’.
Sedley LJ said: ‘no duty of care is owed by the police to the public at large so as to render them liable to an individual who suffers harm from their neglect’ but nonetheless ‘it has become clear . . that in some cases involving the police the very proximity of the parties can not only create a duty of care but can overcome the public policy considerations which would otherwise bar the claim.’
Rimer LJ, Sedley LJ
[2008] EWCA Civ 39
England and Wales
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.270320
Proceedings came to trial but the Defendant only had extremely short notice of the hearing, and did not attend. Under RSC Order 35 rule 2 there was a seven day time limit for the application. Instead of applying under the rule, the Defendant appealed. The material put before the court on the appeal included evidence which the appellant might have sought to put before the court at the trial, and the grounds of the appeal were the same as might have been put before the court on an application under Order 35 rule 2. Held; The proper course would have been to apply under the rule to the High Court, but this did not exclude the separate jurisdiction which the Court of Appeal had to order a new trial if a good case was made out. It dismissed the appeal on the merits.
[1982] Ch 30
England and Wales
Cited – Zambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.270585
The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee.
Held: Hoffmann J said: ‘Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff’s rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them.’
Hoffmann J
[1989] 1 WLR 1268
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.270396
The mere reference to a document in the pleadings was not an automatic waiver of any legal professional privilege.
[1981] 1 QB 223
England and Wales
Appeal from – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Expandable Ltd and Another v Rubin CA 11-Feb-2008
The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.266482
If a landlord seeks to recover possession of property under Order 113, he must take the risk that if the defendant raises an arguable case that he has a tenancy, the matter must go to trial.
(1980) 124 SJ 513
England and Wales
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.259696
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank disclosure of their property and financial resources; accordingly the power to set aside orders was not limited to cases of fraud or mistake, but extended to cases of material non-disclosure; where it could be said that, on the true facts, the orders should not have been made, then the orders could be set aside.
Templeman LJ said: ‘There is no doubt that both the Court of Appeal and the judge at first instance have jurisdiction in the situation with which we are faced in this case, where the application is to set aside a final order. ‘ After quoting from de Lasala, he continued: ‘There are many references in the books to separate actions to set aside a judgment on the ground of fraud. In the Family Division, as has been said many times, this power to set aside final orders is not limited to cases when fraud or mistake can be alleged. It extends, and has always extended, to cases of material non- disclosure.
A distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied, and the power to set aside an order which has been obtained by fraud or mistake, or by material non-disclosure. The essence of the distinction is that the power to vary usually reflects changes of circumstances subsequent to the date of the order, whereas the power to set aside arises where there has been fraud, mistake, or material non-disclosure as to the facts at the time the order was made. From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised. These can be determined more easily, as a rule, by a judge at first instance. Moreover, he can go on to make the appropriate order which we cannot do in this court. I think that these proceedings should normally be started before a judge at first instance, although there may be special circumstances which make it better to proceed by way of appeal.’
He referred to the principles in Minton before saying.
After referring to the clean break principle in Minton v. Minton, Ormrod LJ went on: ‘It is essential in these cases that the court retains its power to protect both parties against injustice which may arise from failure to comply with their obligations to disclose. In other words there is a lot to be said for the principle of the clean break but I have no doubt that Lord Scarman, when he used the phrase, had in mind that the break should be clean in more senses than one.’
The court of appeal is not the appropriate forum for inquiry into disputed issues of non-disclosure raised in proceedings for the setting aside of a financial order
Templeman LJ, Ormrod LJ, Wood J
(1983) FLR 102, [1982] 1 WLR 786
England and Wales
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Compagnie Financiere du Pacifique v Peruvian Guano Co CA 1882
Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also . .
Cited – J v J FD 1955
Sachs J set out the disclosure required in ancillary relief cases: ‘In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has – and his wife has not – detailed knowledge of his complex affairs; where a . .
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 – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.259836
The Court was asked to grant Habeas Corpus on the ground that the European Arrest Warrant received in respect of the defendant was ‘fundamentally deficient’. At the initial hearing, the district judge had remanded the applicant in custody to await the commencement of the extradition hearing.
Held: In the absence of a statutory appeal against that decision, there was jurisdiction to grant a writ of Habeas Corpus. The warrant was deficient and all steps taken pursuant to it were invalid. The court granted Habeas Corpus.
[2004] EWHC 2986
England and Wales
See Also – In re Agnaldo Ernesto Pinto and In the Matter of an Application for a Writ of Habeas Corpus Ad Subjiciendum Agnaldo Ernesto Pinto and Secretary of State for Home Department; Governor of Brixton Prison and Government of India Admn 19-May-1999
. .
Cited – Hilali v Governor of HMP Whitemoor and others Admn 25-Apr-2007
The claimant had been in prison pending removal after his resistance to a European Extradition Warrant had failed. Subsequent developments in the case against him in Spain suggested that the case against him might now fail. He sought a writ of . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.258639
The applicant sought permission to apply for judicial review of a decsion of the defendant not to investigate his complaint that a prosecution of him had in essence been malicious. He had also begun civil proceedings. The defendant argued that it would be wrong to make his decision until the civil proceedings were closed.
Held: Leave was refused. The decision was sensible and appropriate. However since those proceedings had in the interim failed, it might now be open to the claimant to recommence proceedings.
[2006] EWHC 900 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.241446
Application by the respondent to this appeal to admit new evidence in answer to the appellant’s appeal.
[2014] EWCA Civ 858
England and Wales
Updated: 07 May 2022; Ref: scu.538183
The father appealed the terms of a contact order, saying that the judge had failed to address a particular issue in his judgment.
Held: Where counsel perceived such an omission in a judgment, it was his duty to mention it at the time, and not to save it to found an application for leave to appeal.
Wall LJ, Thorpe LJ, Hedley J
Times 02-Jul-2007
England and Wales
Updated: 07 May 2022; Ref: scu.254497
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the statements or admissions than that which a party to the negotiations would have who sought to introduce them in evidence.
[1918] 1 WWR 821
Canada
Cited – Compagnie Financiere du Pacifique v Peruvian Guano Co CA 1882
Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also . .
Applied – Derco Industries Ltd v A R Grimwood Ltd, Insurance Corporation of British Columbia and PLC Construction Ltd 1985
(British Columbia) Lambert J.A said about the without prejudice rule: ‘to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Not followed – I Waxman and Sons Ltd v Texaco Canada Ltd 2-Jan-1968
(Court of Appeal of Ontario) The court approved the decision below. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.253697
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge.
[1943] KB 370
England and Wales
Applied – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.254330
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to proceed to trial, should ask whether the party’s evidence could properly be treated without the cross examination and the other processes preparatory for and during a full trial, as incredible.
Glidewell LJ said: ‘I think it is right to ask, using the words of Ackner LJ in the Banque de Paris case . . ‘Is there a fair or reasonable probability of the defendants having a real or bona fide defence?’ The test posed by Lloyd LJ in the Standard Chartered Bank case, Court of Appeal (Civil Division), Transcript No 699 of 1900 ‘Is what the defendant says credible?’ amounts to much the same thing as I see it. If it is not credible, then there is no fair or reasonable probability of the defendant having a defence.’ and ‘Looking at the whole situation I conclude that there is no fair or reasonable probability of the second defendant having a real or bona fide defence.’
Glidewell LJ
[1993] 1 WLR 1453
England and Wales
Cited – Banque de Paris v de Naray CA 1984
The court considered an application for summary judgment. The defendant filed a statement, but no effective pleading.
Held: The assertion in an affidavit alone of a situation said to found a defence was not enough of itself justify leave to . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
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 . .
Cited – Berg v Blackburn Rovers Football Club and Athletic Plc ChD 29-Apr-2013
The claimant sought damages after termination of his contract of employment as manager of the defendant football club. The Club now sought leave to withdraw an admission of liability as to payment in respect of a minimum period of notice.
Cited – Ogunbiyi, Regina (on The Application of) v Southend County Court and Another Admn 19-Mar-2015
Application for judicial review of a decision of a Circuit Judge at the County Court, (a) refusing permission to appeal again the judgment of a Deputy District Judge following a trial of the claim for damages again the claimant under a hire purchase . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.253655
A reference to the European Court may be appropriate where it was necessary to do justice by the parties.
Lord Lane CJ
[1982] 3 CMLR 221
England and Wales
Updated: 07 May 2022; Ref: scu.247964
[1994] CLC 12
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.245211
Rule 21.2(4) gives the court a power to grant the motion, but does not require it to do so where it would not be appropriate in all the circumstances
Lord Prosser
1994 SLT 1193
Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.241640
A costs order had been drawn up incorrectly, and corrected without reference to the parties: ‘All the cases show that when a slip is corrected in this way, the correction dates back to the date when the document originally took effect . . unless anything has happened in the meantime to make it inexpedient or unjust to do so.’
Lord Denning MR
[1982] QB 172
England and Wales
Cited – Lunn, Regina (on the Application of) v The Governor of HMP Moorland CA 25-May-2006
Having committed an offence whilst on licence, the judge had sentenced the defendant to a term of imprisonment to follow completion of the original sentence. The order drawn up by the clerk recorded that it should be served concurrently. He served . .
See Also – R and T Thew Ltd v Reeves (No 2) CA 2-Jan-1982
The remedy of an award of costs against a solicitor personally is only available to make good loss where the solicitor is guilty of inexcusable misconduct such as to merit reproof.
It is not always easy to separate the effect of a disciplinary . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.242270
The applicant sought permission to apply for judicial review of a couty court judge’s decision refusing her leave to appeal from a deputy district judge. She had also requested that certain judge’s should not hear her case.
Held: The claim was undoubtedly hopeless, without merit and is going to go nowhere. The system in the County Court provides for appeals and it is only in the most exceptional case that judicial review will be considered an appropriate remedy where the County Court has dealt with a case and a judge in the County Court has refused leave to appeal. Because of the absence iof the claimant, the court allowed permission for the claimant to apply within fourteen days for leave to have the matter reheard.
Collins J
[2006] EWHC 898 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.241451
The claimant judgment creditor sought a third party payment order. An interim third party payment order had already been obtained byanother party. The claimant sought payment pari passu.
Held: The other party had priority once their interim order was made absolute. A garnishee order nisi created a defeasible charge in favour of the judgment creditor in respect of the debt garnisheed. That effect was preserved for third party payment orders by the Rules.
Cooke J
Times 27-Feb-2006
England and Wales
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238870
The House considered the validity of service of proceedings. Documents were served by means of ‘letterbox service’ when the defendant was en-route to this country but was not within the jurisdiction. Later that day he arrived within the jurisdiction and was warned by his servant of the delivery of a package, which plainly contained proceedings being sought to be served on him, to his flat in London. He did not, therefore, go to the flat but sent his wife to confirm what his servant had told him. He stayed that night in a hotel and left the jurisdiction the following day. The case was governed by Order 10 Rule 1 of the Rules of the Supreme Court which provided at sub-rule (3) that where proceedings were served by ‘letterbox service’, ‘the date of service shall, unless the contrary is shown, be deemed to be the 7th day . . after the date on which the copy was sent to or, as the case may be, inserted through the letterbox for the address in question.’
Held: the service had been good. The proceedings were drawn to the defendant’s attention at a time when he was within the jurisdiction, namely, when his servant and his wife drew his attention to the package which had been delivered to the flat before he left the country on the second day.
Lord Brightman: ‘The bank contended that although a writ can be served on a defendant personally only if he is then physically present within the jurisdiction, nevertheless it does not follow that physical presence within the jurisdiction is necessary for the validity of the alternative means of service provided by Order 10, namely, postal or letter box service. In support of this argument it was contended that in the opening words of paragraph (2) ‘A writ for service on a defendant within the jurisdiction may . . . be served’ by post or through the letter box, the words ‘within the jurisdiction’ are not descriptive of ‘a defendant’ but of the nature of ‘a writ for service,’ namely, a writ which is in the form of a writ for service within the jurisdiction as distinct from a writ which is in the form of a writ for service outside the jurisdiction. The former type of writ can properly be served on a defendant who is outside the jurisdiction provided that the requirements of the order are fulfilled, that is to say, in the case of letter box service, the letter box must be located at the usual address of the defendant, or at his last known address and the plaintiff must be in a position to depose when he seeks to prove service that in his opinion the copy writ will have come to the knowledge of the defendant within seven days after such insertion.’ and
‘My Lords, I accept the appellant’s proposition that the defendant must be within the jurisdiction at the time when the writ is served, and I do not find it possible to agree the Court of Appeal’s approach. [namely that service of proceedings issued for service within the jurisdiction can properly be served at the last known address of the defendant within the jurisdiction notwithstanding that, at the time of service, the defendant is abroad] This approach would mean that a writ could validly be served under Order 10 on a defendant who had once had an address in England but had permanently left this country and settled elsewhere, by inserting the copy writ through the letter box of his last address, provided that the plaintiff was able within seven days to communicate to the defendant the existence of the copy writ; for in such circumstances the plaintiff could properly depose that the copy writ would have come to the knowledge of the defendant within seven days after it was left in the letter box of his last known address. [a requirement of the rules of the Supreme Court not reproduced in the CPR] This appears to me to outflank Order 11 (relating to service of process outside the jurisdiction) in every case where the defendant was formerly resident in this country and is capable of being contacted abroad within seven days. I feel no doubt that the words ‘within the jurisdiction’ apply to the defendant, and not to the writ for service.’
Lord Brightman
[1989] 1 WLR 506
England and Wales
Cited – Rolph v Zolan CA 1993
Postal service of County Court proceedings on an address within the jurisdiction could be good service notwithstanding that the defendant was physically outside the jurisdiction at the time of such service. Referring to RSC O10R1: ‘Thus it is . .
Still good law – Fairmays (A Firm) v Palmer ChD 31-Jan-2006
The defendant appealed against a decision not to set aside a judgment obtained against him by default. Whilst he retained a property in England, he lived in Ethiopia. The claim was served at the address in England, but was redirected to another . .
Cited – Chellaram and Another v Chellaram and others (No 2) ChD 16-Apr-2002
One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238294
The court considered to what extent it could look to the form of an Act before it was amended in order to assist it in construing the Act as amended: ‘The original section 21(a) of the [Coroners (Amendment) Act] 1926 is no longer law, since it has been replaced by Section 23(3) of the Births and Deaths Registration Act 1953. Nevertheless, the original subsection is admissible in construing the section as a whole and, in our judgment, throws light on its construction. It demonstrates that the section as a whole contemplates a two-stage process’.
Slade LJ
[1988] 1 QB 513
Births and Deaths Registration Act 1953
England and Wales
Cited – Regina v Hammersmith and Fulham London Borough Council, ex parte M; Regina v Similar Ex Parte P etc QBD 8-Oct-1996
Destitute asylum seekers who were not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238299
The House considered how market research surveys might be introduced in evidence. Lord Russell recommended filing affidavits from a limited number of respondents to the survey and filing a further affidavit proving the number of other persons who had replied and making their answers available for perusal.
Lord Russell
[1938] AC 557
England and Wales
Cited – Customglass Boats Limited v Salthouse Brothers Limited 1976
(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238582
The subject of an enemy state registered in the United Kingdom under the Aliens Registration Act 1914 as an alien was entitled to sue in England.
(1914) 31 TLR 2
England and Wales
Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.230001
There was a transcript taken by a shorthand writer.
Held: (Chanell J dissenting) Cozens-Hardy MR said as follows: ‘Now the proceedings in the county court were public. Any one present could listen and take a note of what the witnesses said. The transcript did not involve any such ‘professional knowledge, research and skill’ as Bowen LJ referred to in Lyell v Kennedy. There is no original composition in the document. It is a mere transcript of that which was publici juris. A defendant who has obtained at his own cost a copy of a document, not in his possession, which is not itself privileged, cannot decline to produce the copy, although he obtained it in anticipation of future litigation’ A transcript of a case was ‘publici juris’ (belonging to the public).
Cozens-Hardy MR, Buckley LJ, Chanell J
[1914] 3 KB 86
England and Wales
Updated: 06 May 2022; Ref: scu.223345
(1884) 25 ChD
Cited – Anson (Trading As Party Planners) v Trump CA 7-Apr-1998
The defendant had asked the claimant to organise a substantial party. The account was more than anticipated, and the defendant refused to pay the full amount claimed. She sought leave to appeal judgment in default. The defendant had filed a defence . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.220243
The jurisdiction to grant a negative declaration was not as confined as suggested by Pickford LJ, but his words ‘warn us that we must apply some careful scrutiny’.
Lord Wilbeforce
[1976] 2 LLR 10
England and Wales
Limited – Guarantee Trust Co of New York v Hannay and Co 1915
A negative declaration should be granted by the court only in exceptional circumstances: ‘I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every . .
Appeal from – Camilla Cotton Oil Co v Granadex SA CA 1975
. .
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.220701
In group litigation in respect of the MMR vaccinne, certain lead claimants had had their legal aid withdrawn.
Held: They would be allowed to withdraw from the action and would not require the permission of the court.
Keith J
Times 22-Oct-2004
England and Wales
Updated: 06 May 2022; Ref: scu.220018
The court discussed why marginal notes are not to be used as an aid for stautory interpretation: ‘I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons.’
Phillimore LJ
[1914] 1 Ch 300
England and Wales
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.219890
Two ships had collided. One party sought to appeal the apportionment of damages.
Held: The House considered the reluctance of an appellate court to interefere with an apportionment of damages applied by the court at first instance: ‘It seems to me, my Lords, that the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge. I do not say that there may not be such cases. I apprehend that, if a number of different reasons were given why one ship is to blame, but the Court of Appeal, on examination, found some of those reasons not to be valid, that might have the effect of altering the distribution of the burden. If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think, would be a reason for considering whether a change in the distribution should be made on appeal. But, subject to rare exceptions, I submit to the House that, when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare.’
Viscount Simon, Lord-Chancellor
[1943] AC 197, [1943] 1 All ER 33
England and Wales
Cited – Joyce Andrews v Initial Cleaning Services Limited McDougalls Catering Foods Limited CA 14-Jul-1999
Employees of one company were injured whilst working cleaning the premises of another. The issue was as to apportionment of the personal injury damages between the two companies.
Held: There was an error of approach by the Recorder entitling . .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.219155
The court considered its power to award of set-off as between the costs in an action and the award of damages to the other party. ‘How can any solicitor possibly have an equity against B to make B pay costs which B is ordered to pay to A when B cannot recover from A the costs which A is ordered to pay B? How can any solicitor have an equity to make B pay instead of setting them off? If this matter were free from authority I should say it is the most extraordinary equity I have ever heard of.’
Kay J
(1889) 41 Ch D 518
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.216502
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were proposed as support. An insolvency process was insufficient for this purpose. The court had forewarned the plaintiff of this difficulty. The 1982 Act applied only to injunctions sought for foreign proceedings. The only order in South Africa was an order nisi, was narrow and involved no damages claim nor any tracing remedy.
John Jarvis QC
Times 08-Oct-2004
Civil Jurisdiction and Judgments Act 1982 25
England and Wales
Cited – Herbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor HL 1977
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be . .
Cited – Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft CA 28-Jan-1997
An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .
Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
At first Instance – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Appeal from – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.216340
The House considered the interpretation of a statute dealing with public rights of navigation.
Held: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’
Lord Buckmaster said of the statement by Lord Sterndale in Cape Brandy: ‘That is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers meanings’.
Lord Buckmaster
[1928] AC 143
England and Wales
Cited – Cape Brandy Syndicate v Inland Revenue Commissioners CA 1921
Rowlatt J said: ‘In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied’ and . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.215860
An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action brought was 13 months.
Held: Referring to dicta of Lord Justice Kerr, Lord Griffiths said: ‘I see the force of this observation, particularly in a case like the present, when there is no good reason why the action should not have been started much earlier than it was. But limitation periods are set by Parliament and not by the courts. It would, I think, introduce intolerable uncertainty into the litigation process if litigants were at risk of being penalised even if they commenced their actions within the limitation period and thereafter pursued them expeditiously. The effect would be to push people into precipitate litigation for fear that the court might eventually rule that they had not started their action soon enough.
The courts must respect the limitation periods set by Parliament; if they are too long then it is for Parliament to reduce them. I therefore commence my assessment of the present regime by concluding that the plaintiff cannot be penalised for any delay that occurs between the accrual of the cause of action and the issue of the writ provided it is issued within the limitation period.’ No case had been made out to abandon the need to show that the post-writ delay will either make a fair trial impossible or prejudice the defendant.
The House considered its ability to depart from its previous decisions, and the Practice Statement: ‘To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court control case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by Rules of Court as modified by a judge ; See the Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394).’
Lord Griffiths
[1989] AC 1197
England and Wales
Doubted – Westminster City Council v Clifford Culpin and partners CA 18-Jun-1987
It was questionable whether plaintiffs should be allowed the benefit of the full limitation period with virtual impunity where the facts are known and there is no obstacle to the speedy institution and prosecution of claims. . .
Considered – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.214297
The first instance Judge had struck out a claim under the provisions of order 24 rule 16(1) in circumstances where a number of relevant documents did not appear on the plaintiffs list of documents and were found to have been destroyed, the destruction having taken place after the commencement of proceedings, and in respect of some of the documents, after the plaintiffs list of documents had been filed.
Held: ‘this is the first occasion on which a claim has been stuck out for breach of a discovery obligation’ The judge at first instance was ‘fully entitled to find that there was a serious risk that essential documents may have been destroyed in this case, as a result of which a fair trial of the action is no longer possible… .’ and ‘It may be that the submission means no more than this, that where documents have been deliberately suppressed, it may be relatively easy to draw the inference that they are highly material and that in the absence of those documents justice cannot be done. If that is all that was meant, then I would agree.’
Lord Justice Lloyd
Times 14-May-1991
England and Wales
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.211362
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties.
Wynn LJ, Buckley LJ
[1971] 1 QB 359
England and Wales
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.194066
Third parties who are unconnected with a dispute but who incur expense in complying with an order may specifically be covered by a cross-undertaking as to their costs and otherwise. Robert Goff J said: ‘the banks in this country have received numerous notices of [Mareva] injunctions which have been granted’. Robert Goff J’s referred to the value of and the need for the Mareva jurisdiction and to the care to be taken to ensure that such orders are only to be made for the purposes for which they are intended, namely ‘to prevent the possible abuse of a defendant removing assets in order to prevent the satisfaction of a judgment in pending proceedings’, and that they do not bear harshly upon innocent third parties.
Robert Goff J
[1981] CLY 2163, [1981] 1 WLR 894
England and Wales
Applied – Z Ltd v A-Z and AA-LL CA 1982
The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.192616
Once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say that they meant something different: ‘The reasons for this are twofold: first, to secure the finality of decisions arrived at by the jury; secondly, to protect the jury themselves and to prevent them being exposed to pressure or inducement to explain or alter their views. If this were to be permitted, where is it to stop? After a jury have solemnly found a man ‘Guilty’ and he has been sentenced, are they to be at liberty next day to return and say they meant to find him ‘Not Guilty’? It cannot be.’
Lord Denning MR
[1966] 1 WLR 1135
England and Wales
Cited – Ellis v Deheer 1922
The court heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury.
Held: A jury’s deliberations cannot be questioned. . .
Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.192273
There were two possible reasons why a newspaper might be treated differently from another organisation in defamation proceedings, in that discovery of the source of information will not be ordered. First, it might be expected that it was the purpose of such an interrogatory to sue the informant, which would be improper, and second that it would be against the public interest.
Buckley J
[1914] 39 TLR 288
England and Wales
Cited – Plymouth Mutual Co-operative Soceiety and Industrial Society Ltd v Traders’ Publishing Organisation 1908
Interrogatories in defamation proceedings will not be allowed to request from a newspaper the source of the journalist’s information where there may be considerable public interest. . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Lyle-Samuel v Oldhams Ltd 1919
The rule that in defamation proceedings, a newspaper defendant should not be obliged in interrogatories to disclose the name of an informant is so well established as to be beyond argument. ‘All I say is that this is an action of libel against the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.193368
(Australia) The court considered the meaning of the word ‘deemed’ in a statute. Windeyer J said: ‘the verb ‘deem’, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge, or reach a conclusion about something . . the words ‘deem’ and ‘deemed’ when used in a statute thus simply state the effect or meaning which some matter or thing has – the way in which it is to be adjudged. This need not import artificiality or fiction. It may simply be the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant. Hundreds of examples of this usage of the word appear in the statute books.’
Windeyer J
(1970) 44 ALJR 257
Australia
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.192099
An employee was told by his master ‘I am going to falsify these sales notes and deceive the customers. You are not to say anything about it to anyone.’ He thereafter falsified the sale notes.
Held: The servant was entitled to say: ‘I am not going to stay any longer in the service of a man who does such a thing. I will leave him and report it to the customers.’ ‘There is no confidence in the disclosure of iniquity’
Wood V-C
(1856) 26 LJ Ch113
England and Wales
Cited – Initial Services Ltd v Putterill CA 1967
The plaintiff’s sales manager resigned, but took with him confidential documents which he gave to a newspaper. The defendant sought to justify this, saying that the company had failed to register agreements it should have done under the Act.
Cited – Lion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.193372
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more general than the former: ‘But where it is in the preamble that the reason for restriction is to be found, the difficulty is far greater. For, as so often has been said, Parliament may well intend the remedy to extend beyond the immediate mischief: the single fact therefore that the enacting words are more general than the preamble would suggest is not enough. Something more is needed, and here lies the heart of the problem.’ and ‘On the one hand, the proposition can be accepted that ‘it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms’. I quote the words of Chitty LJ . . On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. To say, then, that you may not call in aid the preamble in order to create an ambiguity in effect means very little, and . . I would suggest that [the rule] is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying . . that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated.’
(Lord Normand) ‘When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are defined. It is therefore clearly permissible to have recourse to it as an aid to construction of the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts… It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail.’ (Lord Somervell) ‘The title and the general scope of the Act constitute the background of the contest. When a court comes to the Act itself, bearing in mind any relevant extraneous matters, there is, in my opinion, one compelling rule. The whole or any part of the Act may be referred to and relied on. It is, I hope, not disrespectful to regret that the subject was not left where Sir John Nicholl left it in 1826. ‘The key to the opening of every law is the reason and spirit of the law – it is the ‘animus imponentis’, the intention of the law-maker, expressed in the law itself, taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connexion with its whole context – meaning by this as well the title and preamble as the purview or enacting part of the statute.’
Viscount Simonds, Lord Normand, Lord Somervell
[1957] AC 436, [1957] 1 All ER 49
England and Wales
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Approved – Regina v Schildkamp HL 1971
The defendant was accused of defrauding the company’s creditors.
Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Cartonneries De Thulin SA v CTP White Knight Ltd CA 25-May-2000
The claimant held patents in respect of certain CD cassette boxes. It alleged infringement. Robert Walker LJ considered the meaning of ‘makes’ in the context of such proceedings. First, the word ‘makes’ must be given a meaning which, as a matter of . .
Cited – Schutz (UK) Ltd v Werit (UK) Ltd SC 13-Mar-2013
The parties disputed whether there had been an infringement of the claimant’s patent in respect for ‘intermediate bulk containers’ designed for the safe transport of liquids in bulk. They were a cage holding a plastic bottle. The defendant had a . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186851
The Act gave special protection to officers and others acting under its powers in cases where, although they might have misconstrued the Act, and although they might have done things which they had no jurisdiction to do, they had acted in good faith and in a reasonable manner. The burden on a defendant before obtaining a summary restraint of a plaintiff’s case as an abuse of process is necessarily a severe one.
[1913] 2 KB 302
England and Wales
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
Cited – Hays Plc v Hartley QBD 17-May-2010
Mr Hartley operated a news agency, and provided to the publisher of the Sunday Mirror, MGN Ltd, allegations of racism that had been levelled at the claimant company by former employees. The allegations were reported in an article headed ”KKK . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186024
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the Court of Appeal. The Order did not avoid the clear ouster of jurisdiction contained in the 1981 Act.
Auld LJ said: ‘the words of Section 28A and of Section 18 of the 1981 Act mean what they say. When a decision is declared final by statute, then this court [the Court of Appeal] has no jurisdiction to hear it by virtue of that provision and by Section 18 of the 1981 Act’
Auld LJ
Times 21-Aug-2003, Gazette 11-Sep-2003, [2004] 1 WLR 195
Supreme Court Act 1981 18 28A, Magistrates Courts Act 1980 111, Access to Justice Act 1999 (Destination of Appeals) Order 2000 (2000 No 1071) 5
England and Wales
Appeal from – Westminster City Council v O’Reilly and others QBD 28-Feb-2003
The premises consisted of a ground floor and basement. A music and dancing licence was in effect for part of the premises, but the appellant challenged the grant of a special hours certificate, based upon that licence, for the entire premises.
Applied – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Applied – Farley v Secretary of State for Work and Pensions (No 2) CA 22-Jun-2005
The Court of Apeal had previously considered an appeal from the grant of a liability order made by magistrates. It had become clear that the order had been made without jurisdiction.
Held: The order must be set aside. The court had no . .
Cited – Kenya Aid Programme v Sheffield City Council Admn 22-Jan-2013
The claimant challenged a decision that it was liable for non domestic rates in respect of some commercial units, on the basis that the use by the charity was not itself charitable.
Held: ‘there is no reason for limiting the ambit of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186037
The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the plaintiffs, who had served their time afer convictions for robbery which were subsequently quashed. They said the confessions were fabricated. Their appeals were allowed after evidence that officers had improperly procured the conviction of other defendants in similar ways. To succeed the plaintiffs had to prove that prosecutions were unfounded. The officers’ state of mind was essential. Documents were sought to be discovered to provide evidence of similar facts in proof of the misconduct the prosecution. Evidence of the officers’ dishonesty went beyond discrediting him as a witness. They showed similar conduct in other cases. The judge refused specific discovery saying it was not similar fact evidence. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were merely attacks on credit, and the plaintiffs already possessed ample evidence for this purpose. The appeal was allowed. At discovery the court lookd to potential rather than actual admissibility. ‘In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.’ For the purpose of specific discovery, it was enough to show ‘sufficient similarity’ (as opposed to a ‘striking similarity’) between the other conduct and the conduct in the present action. He dismissed the ‘mere propensity’ argument in these terms: ‘I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.’
Beldam, Dillon, and Roch LJJ
Unreported, 10 February 1993
England and Wales
Cited – Regina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
Cited – Director of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186051
The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are ‘playing with all the cards face up on the table’ the Master of the Rolls considered that there is ‘a duty of candour resting on the professional man’ and he concluded: ‘Accordingly the court has to have regard to all the circumstances although, in the nature of things, they are likely to be different in medical cases when contrasted, for example, with those involving barristers, solicitors, surveyors or accountants. The exercise of discretion has to be approached on the basis of the philosophy that the basic objective is always the achievement of true justice, which takes account of time, money and what can only be described as the anguish of uncertainty, as well as of a just outcome. It has to be exercised on the basis that the procedure of the courts must be, and is, intended to achieve the resolution of disputes by a variety of methods, of which a resolution by judgment is but one, and probably the least desirable. Accordingly anything which enables the parties to appreciate the true strength or weakness of their positions at the earliest possible moment and at the save time enables them to enter upon fully informed and realistic discussions designed to achieve a consensual resolution of dispute is very much in the public interest. ‘
Sir John Donaldson MR
[1987] 1 WLR 958, [1987] 2 All ER 353
England and Wales
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186048
Lord Evershed said: ‘ . . court proceedings may not be used or threatened for the purpose of obtaining for the person so using for threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.’
Lord Evershed
[1955] Ch 600
England and Wales
Cited – Bushell and Others, Regina (on the Application of) v Newcastle Licensing Justices and others Admn 31-Jul-2003
The claimants objected to a forced transfer of an unused justices on-line for the benefit of the licencee applicants. The licensees had first been refused a licence for certain premises, but then requested and were given transfer of an obsolete . .
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.186022
ComC Leave to serve writ outside jurisdiction under RSC Ord 11 r1(1)(c) – whether required to serve on another defendant before leave obtained – retrospective validation
HHJ Diamond QC
Unreported, 19 December 1995
England and Wales
Confirmed on Appeal to – Kuwait Oil Tanker Company S A K ; Sitka Shipping Incorporated v Al Bader; Qabazard and Stafford CA 24-Mar-1997
. .
See Also – Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others CA 28-May-1999
The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .
See Also – Kuwait Oil Tanker Company SAK and Another v Al Bader and Others CA 18-May-2000
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure . .
See Also – Kuwait Oil Tanker Company Sak and Another v Al Bader and others ComC 17-Oct-2008
The claimants had succeeded in an action based on fraud, and now sought to enforce their judgment. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.185998
Procedure – RSC Order 20 r.5(3) – amendment with leave – discretion – RSC Order 6 r.8(1) – validity of writ – 4 months – RSC Order 11 r.1(1) – leave to serve outside jurisdiction – validity of writ – 6 months – admiralty action in personam RSC Order 75 r.4(4) – exclusion of RSC Order 11 r.1(2) – meaning. Privilege – deployment of court material otherwise privileged – principles – application at interlocutory stage – Fairness – disclosure of part of privileged document – waiver of privilege with respect to other parts
Clarke J
Unreported, 02 November 1995
England and Wales
Updated: 06 May 2022; Ref: scu.185993
[1914] WN 74
England and Wales
Approved – Anthony v Halstead 1877
Where there has been a misdirection in a civil jury trial, it is for the party asserting that the judgment should stand to demonstrate supported by the evidence that any error did not affect the decision reached. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.185258