Category: Litigation Practice

Symphony Group Plc v Hodgson: CA 4 May 1993

A section 51 non-party costs application should not be used as a substitute for the pursuit of a related cause of action against the non-party in ordinary proceedings. Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings. One reason for this immunity is so that witnesses may give their evidence fearlessly.
Balcolmbe LJ said: ‘. . insofar as a witness in proceedings may lead to an application for the costs of those proceedings against him or his company, it introduces yet another exception to a valuable general principle.’
. . And ‘(1) Where a person has some management of the action, e.g. a director of an insolvent company, who causes the company improperly to prosecute or defend proceedings . .
(2) Where a person has maintained or financed the action . . (4) Where the person has caused the action . . I accept that these categories are neither rigid nor closed. They indicate the sorts of connection which have so far led the courts to entertain a claim for costs against a non-party.’

Judges:

Balcombe LJ

Citations:

Gazette 16-Jun-1993, Independent 14-May-1993, Times 04-May-1993, [1994] QB 179, [1993] 4 All ER 143, [1993] 3 WLR 830

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Cited – Taylor v Pace Developments CA 1991
Lloyd LJ said: ‘There is only one immutable rule in relation to costs, and that is that there are no immutable rules.’
Lloyd LJ baulked at the suggestion that every director who funded and controlled litigation on behalf of an insolvent company . .

Cited by:

Cited – Murphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .
Applied – Wiggins v Richard Read (Transport) Ltd CA 14-Jan-1999
When deciding to order costs against a non-party, it was not enough to identify the non-party closely with a party, but must follow all the guidelines set out in Symphony. The White Book note 62/2/7 is inadequate in its description of the rules. . .
Cited – Hamilton v Al Fayed and Others (No 2) CA 17-May-2002
The claimant had lost a libel action and been bankrupted. The defendant sought to recover his costs from those who had financially supported the claimant. He now appealed a dismissal of his request for contributions.
Held: An order for the . .
Cited – Myatt and others v National Coal Board (No 2) CA 16-Mar-2007
The parties had been involved in compensation claims. Complaint was made that the solicitors had recovered fees for action which substantially was intended to benefit the solicitor. The conditional fee agreements had been found to be unenforceable. . .
Cited – Chantrey Vellacott v The Convergence Group Plc and others ChD 31-Jul-2007
The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order . .
Cited – Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates QBD 18-Nov-2008
Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Mengiste and Another v Endowment Fund for The Rehabilitation of Tigray and Others ChD 26-Mar-2013
The defendants were seeking an order for wasted costs against the solicitors for the claimants. The claimants had requested the judge to recuse himself from hearing that complaint. He now gave his reasons for refusing that request. . .
Cited – Weatherford Global Products Ltd v Hydropath Holdings Ltd and Others TCC 10-Oct-2014
Application by successful party to join a third party so as to make costs order against him. . .
Cited – Davies v Forrett and Others QBD 23-Jun-2015
The claimant had been very severely injured as a passenger in a car (uninsured) which had attempted an overtaking manouvre past three cars. One pulled out, and the car in which he was a passenger swerved off the road and crashed. Damages were now . .
Cited – Goknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 04 May 2022; Ref: scu.89666

Kevorkian v Burney (No 2): CA 1937

When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will remain here; and, thirdly, for the defendant to show, if he can, that the asset is worthless or not worth sufficient to cover the costs.

Judges:

Greer LJ

Citations:

[1937] 4 All ER 468

Jurisdiction:

England and Wales

Cited by:

Cited – De Bry v Fitzgerald CA 1990
A request was made for security for costs in a large sum against a foreign resident party: ‘The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 04 May 2022; Ref: scu.578227

Practice Guidance (Interim Non-disclosure Orders): 1 Jul 2011

The Court gave guidance setting out recommended practice regarding any application for interim injunctive relief in civil proceedings to restrain the publication of information (referred to as an interim non-disclosure order). In particular guidance was provided as to ‘the proper approach to the general principle of open justice in respect of such applications’.
Applications which seek to restrain publication of information engage article 10 of the Convention and section 12 of the Human Rights Act 1998 (‘HRA’). In some, but not all, cases they will also engage article 8 of the Convention. Articles 8 and 10 of the Convention have equal status and, when both have to be considered, neither has automatic precedence over the other. The court’s approach is set out in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17.
Open justice
Open justice is a fundamental principle The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR r 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (2009) 50 EHRR 920, para 75ff; Donald v Ntuli (Guardian News and Media Ltd intervening) [2011] 1 WLR 294, para 50.
Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice They are wholly exceptional: R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald v Ntuli [2011] 1 WLR 294, paras 52-53. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M v W [2010] EWHC 2457 (QB) at [34].
There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EMLR 419, paras 50-54. Anonymity will only be granted where it is strictly necessary, and then only to that extent.
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence . . Scott v Scott [1913] AC 417, 438-439, 463, 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, paras 2-3; Secretary of State for the Home Department v AP (No 2) [2010] 1 WLR 1652, para 7; Gray v W [2010] EWHC 2367 (QB) at [6]-[8]; and H v News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645, para 21.
When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings . . On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled.’

Judges:

Lord Neuberger of Abbotsbury MR

Links:

Judiciary

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 May 2022; Ref: scu.575242

London Association of Shipowners and Brokers v London and India Docks Joint Committee: CA 1982

The P and O. Company, one of the plaintiffs, not asserting any public right, and so not using the Attorney-General’s name, was bound to prove special damage and was unable to do so. It had failed to establish its alleged rights and so its appeal was dismissed but nevertheless the court made a declaration of right in favour of the P and O. The court supported to the distinction between private and public rights and to the necessity for the latter to be enforced by, or through, the Attorney-General.

Citations:

[1892] 3 Ch 242

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 May 2022; Ref: scu.573238

Cannock Chase District Council v Kelly: CA 1978

Megaw LJ set out a definition of ‘bad faith’: ‘I would suggest – that it seems to me that an unfortunate tendency has developed of looseness of language in the respect – that bad faith or, as it is sometimes put, ‘lack of good faith,’ means dishonesty, not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as pseudonym of honest though mistaken [conclusion], taking into consideration of a factor which in law is irrelevant.’

Judges:

Megaw LJ

Citations:

[1978] 1 WLR

Jurisdiction:

England and Wales

Cited by:

Cited – Webster v Ministry of Justice QBD 23-Oct-2014
The claimant had been convicted at trial, and release after a successful appeal but after considerable time in jail. He now comlained of the judge’s conduct at trial saying that misdirections amounted to bad faith.
Held: The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Updated: 04 May 2022; Ref: scu.550607

Richards v Naum: CA 1967

The Court of Appeal allowed an appeal against an order for the trial of a preliminary issue, since in its view the issue of privilege the subject of the order might require for its determination an investigation of fact in greater detail than the facts alleged in the statement of claim, on the basis of which alone the preliminary issue was to be tried.
The court considered the disadvantages of a trial by jury of a defamation case where the issues involved complications of law.
Lord Denning MR said that important and disputed constitutional points of law should not be taken by a court when it is unnecessary to the result of the proceedings and when conditions for deciding it are not ideal.

Judges:

Lord Denning MR

Citations:

[1967] 1QB 620

Cited by:

Cited – McGrath v Independent Print Ltd QBD 26-Jul-2013
The claimant alleged defamation in an article on the defendant’s web-site discussing a failure of his earlier defamation action. He now sought directions for a jury trial. . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 04 May 2022; Ref: scu.543799

Bryers v Canadian Pacific Streamships Ltd: CA 1956

Judges:

Singleton LJ

Citations:

[1957] 1 QB 134, [1956] 3 All ER 560

Cited by:

Appeal from – Canadian Pacific Steamships Ltd v Bryers HL 1957
A regular member of a ship’s crew was injured when the ship was in dry dock. The Court of Appeal had held that the Regulations applied even though he was not emplyed by the appellant company.
Held: Affirmed. The power contained in section 79 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.538241

RG Carter Ltd v Clarke: CA 1990

Even in an Order 14 application, the court will, on suitable occasions, be prepared to decide complicated and difficult questions of law.
Lord Donaldson MR said: ‘If a judge is satisfied that there are no issues of fact between the parties, it would be pointless for him to give leave to defend on the basis that there was a triable issue of law. The only result would be that another judge would have to consider the same arguments and decide that issue one way or another. Even if the issue of law is complex and highly arguable, it is far better if he then and there decides it himself, entering judgment for the plaintiff or the defendant as the case may be on the basis of his decision. The parties are then free to take the matter straight to this court, if so advised. This was the situation in the classic case of Cow v Casey [1949] 1 All ER 197, [1949] 1 KB 474. But it is quite different if the issue of law is not decisive of all the issues between the parties or, if decisive of part of the plaintiff’s claim or some of those issues, is of such a character as would not justify its being determined as a preliminary point, because little or no savings in costs would ensure. It is an a fortiori case if the answer to the question of law is in any way dependent on undecided issues of fact.’

Judges:

Lord Donaldson MR, Stocker and Woolf LJJ

Citations:

[1990] 1 WLR 578, [1990] 2 All ER 209

Jurisdiction:

England and Wales

Citing:

Cited – GL Baker Ltd v Medway Building and Supplies Ltd CA 11-Jan-1958
A claim was made by a company to recover money entrusted to its auditor who fraudulently had paid away some of it to a company of which he was a director. Amendments of pleadings for the purpose of determining the real question in controversy . .

Cited by:

Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.537031

GL Baker Ltd v Medway Building and Supplies Ltd: CA 11 Jan 1958

A claim was made by a company to recover money entrusted to its auditor who fraudulently had paid away some of it to a company of which he was a director. Amendments of pleadings for the purpose of determining the real question in controversy between the parties are usually allowed, unless the other party will be seriously prejudiced thereby.
Danckwerts J said: ‘This Act is one which I understand was drafted by a very eminent Chancery lawyer, but nonetheless it is one which gives considerable difficulties of interpretation whenever the court is concerned with its application . . It seems to me that the words ‘in respect of any fraud or fraudulent breach of trust’ may be capable of referring to a case where the action of the plaintiff is based upon the fact that their monies were fraudulently paid away and have reached the hands of an innocent party. That is a possible construction but whether or not it is the right one is not at all clear.’

Judges:

Danckwerts J, Jenkins LJ

Citations:

[1958] 1 WLR 1216, [1958] 3 All ER 540

Cited by:

Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – RG Carter Ltd v Clarke CA 1990
Even in an Order 14 application, the court will, on suitable occasions, be prepared to decide complicated and difficult questions of law.
Lord Donaldson MR said: ‘If a judge is satisfied that there are no issues of fact between the parties, it . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 04 May 2022; Ref: scu.537025

Powney v Coxage: QBD 8 Mar 1988

The court heard a dispute as to whether, when the Motor Insurers’ Bureau had been joined as a defendant to an action, it was possible to obtain an interim payment under the unamended form of the rules.
Held: It was not possible for such an interim payment to be made in those circumstances.

Judges:

Schiemann J

Citations:

Times 08-Mar-1988

Cited by:

Cited – Sharp By her Next Friend Sharp v Pereira and Motor Insurers’ Bureau CA 24-Jun-1998
The court considered the arrangement for interim payments of damages awards where the claim was to be made through the Bureau. The agreement between the Bureau and the insurer members predated and did not allow for such payments.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice, Personal Injury

Updated: 04 May 2022; Ref: scu.526107

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 privileged documents, particularly those passing between the plaintiffs and their solicitors.
Held: Jonathan Parker J discussed the judgments in NRG and in Lillicrap and said: ‘As I read the judgment of Dillon LJ, in accepting the judge’s formulation of the scope of the waiver Dillon LJ was accepting (a) that the fact which gives rise to the implication of waiver is the fact that the plaintiff has invited the court to adjudicate on the particular issue and (b) that implicit in that invitation is an acceptance on the part of the plaintiff that in making its adjudication the court must have access to all the evidential material which is required to enable it to do so fully and fairly . . In my judgment the decision in Lillicrap v. Nalder is authority for the proposition that it is not a necessary condition of an implied waiver of privilege by a plaintiff that the documents in question should be privileged as between the plaintiff and the defendant. As I read the decision in Lillicrap v. Nalder, the principles expressed by the Court of Appeal in that case are applicable to privileged communications between a plaintiff and a third party.’
As to Wardrope, he said: ‘Moreover, as I indicated earlier, Derrington J’s decision and his reasoning is, in my judgment, entirely consistent with and covered by the decision of the Court of Appeal in Lillicrap v. Nalder. The same consideration applies, in my judgment, to the decision in the American case of Hearn v. Rhay considered by Colman J in NRG v. Bacon and Woodrow. It appears from the reports of those cases – although I must make it clear that in relation to Hearn v. Rhay I have only seen the report of the NRG case – that the principles of implied waiver based upon the contents of the pleadings in the action are substantially the same in each of the three jurisdictions.’

Judges:

Jonathan Parker J

Citations:

[1996] PNLR 578

Citing:

Cited – Lillicrap v Nalder CA 1993
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 . .
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 – Wardrope v Dunne 1996
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the . .

Cited by:

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 – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 04 May 2022; Ref: scu.521202

Wardrope v Dunne: 1996

(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the existence of that state of mind, legal privilege may be lost.
Derrington J said: ‘The same basic principle is relevant to this issue, that is, whether the original privilege has been lost because the state of mind of Mr Johnston, which may or may not have been influenced by the privileged material, is in issue. In the resolution of that issue it is necessary to investigate all relevant matters in his mind at the time in order to determine whether he was so induced by the alleged representations at all. Cognate to this is the question whether other factors constituted the inducement. The recommendations of Mr Miller and the terms of all advice concerning the recommendations which Mr Johnson says provided the material upon which he made his decision is obviously highly relevant to the enquiry. It would be grossly unjust to the plaintiff to deny him access to it in order to investigate and test the claim.
Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, then the privilege is lost.’

Judges:

Derrington J

Citations:

[1996] 1 Qd R 224

Cited by:

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

Commonwealth, Legal Professions, Litigation Practice

Updated: 04 May 2022; Ref: scu.521203

X Corporation v Y: 16 May 1997

Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it.

Citations:

Unreported, 16 May 1997

Cited by:

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 – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 04 May 2022; Ref: scu.521204

Thompson v Australian Capital Television Pty Ltd: 10 Dec 1996

High Court of Australia – Torts – Joint tortfeasors – Release – Effect of release of one joint tortfeasor on other joint tortfeasors – Effect on common law of s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) – Whether cause of action against joint tortfeasors one and indivisible.
Defamation – Defences – Innocent dissemination – Whether available to television station which retransmits unchanged to different area a program produced by another – Whether television station a subordinate publisher.

Judges:

Dawson, Toohey, Gaudron, Gummow JJ

Citations:

(1996) 141 ALR 1, (1996) 186 CLR 574, (1996) 71 ALJR 131, [1997] Aust Torts Reports 81-412, (1996) 20 Leg Rep 24

Links:

Austlii

Commonwealth, Litigation Practice

Updated: 04 May 2022; Ref: scu.517799

Warnock v Scarborough Football Club: EAT 1989

EAT The employer, the club’s former manager, had started High Court proceedings for breach of contract. The employee raised the question that he had been constructively dismissed by the employer. The employee, in order to prevent his case from being time-barred, started Industrial Tribunal proceedings for constructive dismissal. The same issue thus arose in the High Court proceedings as arose in the Industrial Tribunal proceedings, namely, whether the employers had constructively dismissed the employee.
Held: The correct exercise of the Tribunal’s discretion was a decision that the Industrial Tribunal proceedings should be stayed, pending a resolution of the High Court proceedings which included the same issue. It is advisable where an employee is bringing both industrial tribunal proceedings for unfair dismissal and intends to sue for wrongful dismissal at common law, for him to make it clear that that is what he is doing, and that the industrial tribunal proceedings, which have of course, as is notorious, a very short time limit imposed upon them are only brought to satisfy that very short time limit.

Judges:

Wood J

Citations:

[1989] ICR 489

Statutes:

Employment Protection (Consolidation) Act 1978

Cited by:

Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 04 May 2022; Ref: scu.519357

Bryanston Finance Limited v de Vries: 1975

If A claimed to be the victim of a tort committed by joint tortfeasors, and if A obtained either a judgment against one or more of them, or the benefit of a settlement by which he released one or more of them, then subject to certain exceptions, A thereby released the others

Judges:

Lord Diplock

Citations:

[1975] QB 703

Cited by:

Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.517798

Perestrello E Companhia Limitada v United Paint Co Ltd: CA 1969

The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages.
Held: Where a plaintiff claims that he has suffered damage, ie injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extend of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.
Lord Donovan said: ‘There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions ‘special damage’ and ‘special damages’ are used in such a wide variety of meanings, it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.
The Rules of the Supreme Court are of no direct assistance. Ord 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 ‘every pleading must contain the necessary particulars of any claim . .’ By rule 15 ‘a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading ‘damage’ (meaning injury) or ‘damages’ (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall ‘put the defendants on their guard and tell them what they have to meet when the case comes on for trial. (per Cotton LJ in Philipps v Philipps (1878) QBD 127, 139).
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claim will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. ‘The question to be decided does not depend on words, but is one of substance’ (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at p 529).
The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is ‘special’ in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
. . if the claim is one which cannot with justice be sprung on the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in Susquehanna [1926] AC 655 at p 661 ‘if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.’
What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiffs claim ‘damages’ is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning.’

Judges:

Lord Donovan

Citations:

[1969] 1 WLR 570

Cited by:

Cited – Whalley v PF Developments and Another CA 14-Feb-2013
The claimants appealed against the level of damages awarded to them in respect of a trespass by the respondent developer. The judge had rejected the claim for unpleaded special damages. The claimants said that the sums had been covered in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 04 May 2022; Ref: scu.514229

Anlaby v Praetorius: CA 1888

The court below had refused an application to set aside a judgment obtained irregularly.
Held: The appeal succeeded. A Statement of Claim indorsed on the Writ is a pleading.
Lopes LJ held: ‘the judgment entered by the plaintiff was premature and irregular . . without any right whatsoever. To obtain that judgment was a wrongful act, not an act done within any of the rules. The defendant is therefore entitled ex debito justitiae to have it set aside.’
Fry LJ said: ‘the judgment entered . . was premature and irregular. In such a case the right of the defendant to have the judgment set aside is plain and clear. The Court acts upon an obligation; the order to set aside judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter, leading to the issue of execution, and possibly to an action of trespass. We were pressed with the argument that Order LXX., r.1, gives discretion to the Court which applies here. Rule 1 provides that ‘non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or a judge shall think fit.’ But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all. I do not think, therefore, that the case comes within r.1, and we must consider what is the right practice without reference to that rule. There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief.’
and ‘although the Court is bound to set aside an irregular judgment ex debito justitiae, it has always exercised a discretion as to costs.’

Judges:

Fry, Lopes LJJ

Citations:

(1888) 20 QBD 764, 58 LT 671, 57 LJQB 287, 4 TLR 439

Jurisdiction:

England and Wales

Cited by:

Cited – Charlesworth and Others v Focusmulti Ltd and Others CA 15-Mar-1993
Judgment had been entered by the plaintiff in default of defence, but before the time limit for filing a defence had expired. Such a judgment was fatally flawed, and could not be cured. The judgment had to be set aside without any consideration of . .
Cited – Faircharm Investments Ltd v Citibank International Plc CA 6-Feb-1998
An irregular judgment had been entered. A claim was made after the proceeds of a life policy secured under a mortgage had been wrongly paid out after the mortgage was redeemed by a third party.
Held: The appeal was dismissed. The so-called . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.472099

Barham v Lord Huntingfield: CA 1913

The plaintiff pleaded that on a day at the end of 1910 or early in 1911 the defendant published specified defamatory words to Le Grys and further during the years 1910, 1911 and 1912 the defendant published similar words. The slander imputed immoral conduct to the plaintiff, a married woman. The plaintiff stated that she could not give particulars until discovery. She sought to administer interrogatories asking whether the defendant had in any of the three years uttered the words complained of to any person other than the person named and, if so, the names of such persons.
Held: The interrogatories were disallowed in this particular case. The plaintiff’s application to administer interrogatories was not based upon sworn evidence as to there having been other publications.
Kennedy LJ said: ‘In the present case there is nothing before the court to show any foundation whatever for the suggestion that the defendant has uttered any defamatory statements of the plaintiff beyond the one particularised in the statement, and the plaintiff is endeavouring by means of these interrogatories to find out whether at any time during a period of three years the defendant has said the same thing or substantially the same thing to other persons. The plaintiff’s application is not based on sworn evidence as to there having been other publications, as was the case in Russell v Stubbs but on a mere allegation unsupported by evidence.’

Judges:

Kennedy LJ

Citations:

[1913] 2 KB 193

Citing:

Distinguished – Russell v Stubbs Limited HL 3-Apr-1913
The plaintiff said that the defendants, publishers of a trade magazine providing inter alia credit references, had slandered it. The defendants appealed against an order requiring it to provide details of others to whom the slander had been . .

Cited by:

Cited – Citation Plc v Ellis Whittam Ltd CA 8-Mar-2013
The parties competed in providing employment law services. The claimant complained of slanderous comments said to have been made by the defendant in discussions with a firm of solicitors seeking to select a firm. The claimant now appealed against . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 04 May 2022; Ref: scu.471570

In re St Nazaire Company: CA 1879

Sir Richard Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal.
Held: He had no power to do so. Any such power had disappeared with the Judicature Acts.
Thesiger LJ added that, ‘whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law Courts’
Sir George Jessel MR explained that the Judicature Acts had changed everything: ‘the hope of every appellant was founded on the change of the judge’

Judges:

George Jessel MR, Thesiger LJ

Citations:

(1879) 12 Ch D 88

Jurisdiction:

England and Wales

Cited by:

Cited – In re Suffield and Watts, Ex parte Brown CA 1888
A High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860.
Held: A judge has jurisdiction to reverse his decision at any time until . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.472058

Russell v Stubbs Ltd: CA 1912

The defendants published ‘Stubbs’ Weekly Gazette’ providing credit reports on persons engaged in trade to their subscribers. The plaintiff pleaded that the defendant had published a report as to the plaintiff’s financial position to a named person and to other persons whose names are unknown to the plaintiffs. The plaintiffs relied on appeal on an affidavit within which the deponent swore that in a telephone conversation he was told that the defendants had issued a bad report and on request from the plaintiff’s solicitors the defendants had provided to them a copy of a report on the plaintiffs.
Held: The Court restored the order of the Master that the plaintiffs give particulars of the persons to whom the libel was published after discovery. The pleading was not a mere fishing allegation in connection with which they wished to get discovery before going on with the case.
Sir Gorell Barnes, President said: ‘the real question which we have to determine is whether there is anything unreasonable in allowing the plaintiffs to have discovery which will enable them to show that this libel was published to somebody whom they specify or to other persons who have had exactly the same information sent to them by the defendants. Although the point may perhaps not be exactly covered by any of the authorities which have been cited to us and may to some extent be said to be novel, I think that having regard to the position of the parties, the plaintiffs being engaged in a trade and having information given about them by the defendants, whose business it may be to give information of that kind, if it is alleged that that information was given to some specified person or company, but with uncertainty on the part of the plaintiffs as to whether they can clearly establish that it was given to the particular person specified or to some clerk or person connected with the company, there is no hardship on the defendants or unreasonableness in placing the plaintiffs in the position of being able to say, ‘We are going to prove this, and, from the discovery which we expect to get from you, we also intend to prove that you published the report in identical terms at the same time to some other person or persons.’ To my mind that is not unreasonable, and I think it is within the principle which has been discussed and laid down in several of the cases, and I cannot myself see that it inflicts any hardship whatever upon the defendants. They must know perfectly well whether they have published this alleged libel, and to whom, if any one, they have published it, and the allegations in the latter part of paragraph 4 of the statement of claim can present no difficulty or embarrassment to the defendants in framing their defence. They may say that they did not publish the report to any one, or that they did publish it and it is true, or that they only published it to persons on occasions which made it a privileged communication. I cannot see that the defendants will have any difficulty whatever in meeting the plaintiffs’ case, no matter to whom publication was made, provided that it is confined, as the plaintiffs’ counsel have stated in this Court that they are content it should be confined, to publication at the particular time and in the express and particular terms set out in the statement of claim.’

Judges:

Sir Gorell Barnes, P

Citations:

[1913] 2 KB 200

Jurisdiction:

England and Wales

Cited by:

Appeal from – Russell v Stubbs Limited HL 3-Apr-1913
The plaintiff said that the defendants, publishers of a trade magazine providing inter alia credit references, had slandered it. The defendants appealed against an order requiring it to provide details of others to whom the slander had been . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice, Scotland

Updated: 04 May 2022; Ref: scu.471571

In re Harrison’s Share Under a Settlement: CA 1955

The judge had recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no power to make such an order.
Held: The court rejected the submission that the order could only be corrected for manifest error or omission (as can a perfected order under the ‘slip rule’): ‘When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed.’

Citations:

[1955] Ch 260

Cited by:

Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.472060

Anonymous [1482] EngR 1: 1482

Giving day to one, if shall help the other. So if two be jointly and severaIly bound to pay money, and the obligee will give longer day (or other favour) to the one, and then will sue the other for the debt, he which is sued shall sue in Chancery

Citations:

(1482-83) Cary 17, (1482) 21 ER 9 (H)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 May 2022; Ref: scu.470384

In Re Hearn: CA 2 Jan 1913

The parties had settled their action, and the compromise agreement embodied as a schedule to the court order. The claimant now appealed against an order refusing to allow him to enforce the agreement by action within the original proceedings, instead insisting that a new process be begun.
Held: The appeal failed. The applicant was seeking relief against the trustees outside the ambit of the compromise itself. Sargent J had been exactly right.
Cozens-Hardy MR LJ said: ‘But apart from that, although that alone is a sufficient ground for dismissing this appeal, there is also this further ground – namely, that this is an attempt to enforce, not a title under the will, which alone was dealt with by the trustees’ summons, but an entirely new and independent bargain between the husband and the wife, and that could not be done in the old proceedings.’

Judges:

Cozens-Hardy MR LJ

Citations:

(1913) 108 LT 737

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Hearn, De Bertodano v Hearn (No.1) ChD 1913
W, living apart from H, asked the court to decide questions as to the will of H’s father, including a determination as to whether H had forfeited a life interest in certain property. Before the application was heard a ‘complex consent order’ was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.470662

George v Secretary of State for the Environment: CA 1979

The claimant challenged a decision made under the 1946 Act.
Held: It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review.
Lord Denning MR said: ‘I also accept the submission that there can be no such thing as a ‘technical’ breach of the rules of natural justice, since the concept of natural justice is not concerned with the observation of technicalities but with matters of substance.
The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice.
One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error that has been made . .’
Cumming-Bruce LJ described the kind of situations within judicial review proceedings, where which cross-examination should be ordered: ‘The kind of situations in which I would expect cross-examination to be ordered is where the affidavits of one party are so unsatisfactory that, although they cannot be regarded without cross-examination as worthless evidence, they cannot be confidently accepted as evidence of fact without cross-examination. On the facts of this case . . I would have thought, on reading the affidavits, that there was an overwhelming inference that the evidence was both ingenuous and ingenious and so suspicious that, without cross-examination, it should anyway be rejected. If however, Sir Douglas Frank was not prepared, as he was not, to go as far as that, it was in my view, his duty to admit the cross-examination in order to determine whether the evidence was unreliable.’
Lord Denning MR gave three reasons for the judicial reluctance to order cross-examination in cases of judicial review: ‘(i) that because the affidavits will usually speak as to what took place before a judicial or quasi-judicial body they may have to be sworn by a planning inspector or a magistrate, or someone of that kind. Since it is undesirable that such a person should be subjected to cross-examination, the applicant should not be liable to cross-examination either;
(ii) experience shows that on procedural questions arising on judicial review there is very little conflict on the affidavits; and
(iii) if cross-examination is permitted there will be a temptation to try and undermine the actual findings of the inferior body.’

Judges:

Lord Denning MR, Cumming-Bruce LJ

Citations:

(1979) 77 LGR 689, (1979) 38 P and CR 609, (1979) 250 EG 339

Statutes:

Acquisition of Land (Authorisation Procedure) Act 1946

Cited by:

Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Judicial Review, Litigation Practice

Updated: 04 May 2022; Ref: scu.470550

Lawrenson v Lawrenson and Equity Red Star: 12 Jul 2005

Judges:

Judge Stewart QC

Citations:

Unreported, 12 July 2005

Jurisdiction:

England and Wales

Cited by:

Cited – Charnock and Others v Rowan and Others CA 20-Jan-2012
14 passengers in a bus hit from behind at a slow speed had all claimed whiplash injury. The expert had said that the accepted speed required to produce such an injury was a change of 3mph, which would require an impact at 30mph, whereas the evidence . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.450439

Practice Guidance: Interim Non-Disclosure Orders: 20 May 2011

Judges:

Lord Neuberger MR

Links:

Judiciary

Cited by:

Applied – Hutcheson v Popdog Ltd and Another CA 19-Dec-2011
The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
Held: Leave to appeal was . .
Cited – NNN v Ryan and Others QBD 20-Mar-2013
The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.450121

Holmes v Bangladesh Binan Corporation: 1988

An appeal was sought from a judge’s order deciding a preliminary issue of law. The claimant sought damages under the Fatal Accidents Act case.
Held: Bingham LJ said: ‘Order 33, r. 3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory simply because it will not be finally determinative of the action whichever way it goes. Instead, a broad commonsense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.’

Judges:

Bingham LJ

Citations:

[1988] 2 LLRep 120, [1988] 2 Lloyds Rep 120

Citing:

Cited – White v Brunton CA 1984
A judgment given upon a trial of a preliminary issue was held to be a final judgment for the purpose of deciding whether leave to appeal was required on the ground that it could be treated as the first part of a final hearing. Sir John Donaldson MR . .

Cited by:

Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.449038

Practice Guidance: McKenzie Friends (Civil and Family Courts): 2010

Citations:

[2010] 2 FLR 962

Citing:

See Also – President’s Guidance: McKenzie Friends FD 14-Apr-2008
‘A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an . .

Cited by:

Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.445479

Arias and Others v Commissioner for the Metropolitan Police and Another: CA 1 Aug 1984

A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence of a widespread fraud and that the documents were crucial to their investigations and that the investigation might be ‘hampered’ and disclosure might provide ‘an opportunity to fabricate evidence’. The police claim succeeded. The trustees appealed
Held: The appeal succeeded. May LJ giving the leading judgment said: ‘For my part I respectfully do not think that in that passage from his speech in IRC v. Rossminster . . which I have just read, Lord Diplock was intending to go as far as that. It seems to me quite apparent from his reference to ‘other evidence’ on the relevant application being ‘strong enough to justify the inference that no reasonable person could have thought so’ necessarily contemplates that to which Lord Morris referred in his speech in Conway v. Rimmer . . namely that in all these cases where there are conflicting public interests the ultimate decision as to which is to prevail must depend upon the exercise of discretion by the judge before whom the relevant application is made, that is to say by him conducting an appropriate balancing exercise of the one public interest against the other, and of the harm which would result from denying one public interest against the harm which would result from denying the other. That that is the duty of the court in these circumstances is, I think, quite apparent also from such cases as D v. NSPCC. . . In that context I quote paragraphs 19 and 21 of the learned judge’s judgment: ‘The second defendant –that is, the detective constable — has sworn that all the documents are crucial to his investigation and the reason why copies should not be provided he goes on to say, is because if they are disclosed at this stage there is a future real danger that his investigations may be hampered and an opportunity provided to fabricate evidence.
I am not satisfied that the evidence I have considered is strong enough to justify the inference that the Second Defendant has no reasonable grounds for his belief and accordingly this application for a mandatory injunction is refused.’
It will be immediately apparent that the learned judge’s reference to ‘evidence’ and ‘inference’ in paragraph 21 stems from the dictum of Lord Diplock in the Rossminster case which I have quoted . . ‘For my part I accept that in the factual context of the present case a claim to a public interest to retain documents so that criminal investigations may be properly prosecuted is at least arguable. I also accept, however, Mr. Purnell’s submission that in this particular case the claim to that public interest immunity goes very much further than it has in any other case. He submits, for instance, that it would not be difficult in almost any case –particularly any case involving documentary material –for the prosecuting authority to come along and depose genuinely on affidavit to their fear that if the documents were disclosed the alleged offenders might seek to fabricate defences. This shows, he submits, how wide is the claim for immunity in this appeal.
For the reasons which I have tried to give, I think at the end of the day, in these cases where there are two conflicting public interests involved and one cannot at once say that in the particular circumstances one or the other must clearly prevail, it is a question for the court to perform the sort of balancing exercise to which I have referred, setting the one public interest against the other, the benefit of which will accrue from the maintenance of the one against the benefit which will accrue from the maintenance of the other, and also the harm which will accrue from not allowing one or the other to succeed . . Whilst I bear in mind what Lord Morris said in his speech in Conway v. Rimmer . . that one must remember that it may sometimes be difficult for a person claiming this particular public interest privilege to condescend to substantial particulars for the very reason that, if he does, he may give the whole game away at that stage, I am satisfied that the evidence in the two affidavits to which I have referred, when properly and realistically analysed, is really only speculation. What the officer says, for instance, in the most recent affidavit is that, if the information were to be made available, ‘it would enable them, if so minded, to attempt to cover their tracks by the production of other documents based on the information contained in the documents which I hold.
As I have said, I take the view that in all these cases what the court has to do is to conduct the appropriate balancing exercise. I would not wish it to be thought that in every case something more than the mere statement of belief on reasonable grounds on the part of the relevant police officer or revenue officer is required. Each of these cases, in which this conflict of public interest arises has to be decided on its own facts having regard to all the circumstances of the case as they then appear to the court. Doing the balancing exercise in the present case, however, bearing in mind the view that I take of the speculative character of the evidence proffered on behalf of the respondents, I am driven to the conclusion that the fact that these documents are the appellants’ own documents, and that they are only asking for copies of them to enable the trust business to be carried on, even if they may wish to prepare their defence to any criminal prosecution which may hereafter be instituted, leads to the balance coming down clearly in favour of the appellants . . In my judgment, to make good that claim would require substantially more cogent evidence than is available in the affidavits sworn by the detective constable in the instant case.’

Judges:

Kerr, May LJJ

Citations:

(1984) SJ (128) 784

Jurisdiction:

England and Wales

Citing:

Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .

Cited by:

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

Litigation Practice, Police

Updated: 04 May 2022; Ref: scu.443852

Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd: CA 1916

The court refused to order the production in litigation of a copy of a letter written by the defendants to their agents in Persia containing confidential information from the Admiralty as to the progress of the campaign in Persia during the First World war. The document contain confidential information supplied by the Crown, and the production of which would be harmful to the public interest.
Swinfen Eady LJ said: ‘The foundation of the rule is that the information cannot be disclosed without injury to the public interests, and not that the documents are confidential or official, which alone is no reason for their non-production.’

Judges:

Swinfen Eady LJ

Citations:

[1916] 1 KB 822

Cited by:

Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.441884

London Borough of Enfield v SA, FA and KA: 2010

McFarlane J considered whether hearsay statements from a person who lacked capacity were admissible under the 2007 Rules (‘COPR’).
Held: The power of the Court to ‘admit such evidence, whether written or oral, as it thinks fit’ pursuant to rule 95(d) of COPR conferred upon the Court of Protection power to admit evidence from a witness who was not competent

Judges:

McFarlane J

Citations:

[2010] EWHC 196 (Admin)

Statutes:

Court of Protection Rules 2007 95(d)

Cited by:

Approved – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 04 May 2022; Ref: scu.443296

Kuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru: CA 1981

Citations:

[1981] 2 Lloyd’s Rep 510

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.441573

Macaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd: 1961

The court considered an allegation of non-disclosure in the case of an application to serve proceedings abroad: ‘If the judge is satisfied that there was no intention to deceive and the mis-statement is not grossly negligent, he may think it better not to visit it with a penalty which may fall as heavily on the defendants as on the plaintiffs, since the plaintiffs can, ex hypothesi, make a fresh application which will succeed.’

Judges:

Cross J

Citations:

[1961] RPC 184

Jurisdiction:

England and Wales

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 04 May 2022; Ref: scu.441572

Re Jogia (A Bankrupt): 1988

Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to serve out cannot resist an application challenging the jurisdiction by pleading a new cause of action. A claim for unjust enrichment, in the absence of a contractual relationship between the parties, and other than claims to land, are governed by the law of the place of enrichment.
Sir Nicolas Browne-Wilkinson V-C said (obiter): ‘As at present advised, I am of the view that quasi-contactual obligations of this kind arise from the receipt of the money. I find it difficult to see how such obligation can be said to be ‘made’ or ‘arise’ in any place other than that of receipt. As to the proper law, Dicey and Morris, the Conflict of Laws, 10th edn. (1980), p.921 expresses the view that, save in cases where the obligation to repay arises in connection with a contract or an immoveable, the proper law of the quasi-contact is the law of the country where the enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle.’

Judges:

Nicolas Browne-Wilkinson V-C

Citations:

[1988] 1 WLR 484, [1988] 2 All ER 328

Citing:

Applied – Parker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 May 2022; Ref: scu.441564

Saunders And Benning v Smith And Maxwell: 22 Jun 1838

Citations:

[1838] EngR 772, (1838) 3 My and K 711, (1838) 40 ER 1100

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Intellectual Property, Litigation Practice

Updated: 04 May 2022; Ref: scu.312778

Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry: CA 1 Mar 2005

The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the application, and now appealed its refusal.
Held: The court restated the practice on the making of a protected costs order. PCOs can be harnessed in cases of general public importance where it is in the public interest for the courts to review the legality of novel acts by the executive in a context where it is unreasonable to expect that anyone would be willing to bear the financial risks inherent in a challenge. The court restated the governing principles: ‘1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: i) The issues raised are of general public importance; ii) The public interest requires that those issues should be resolved; iii) The applicant has no private interest in the outcome of the case; iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. 2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. 3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. ‘

Judges:

Lord Phillips Master Of The Rolls

Citations:

[2005] 1 WLR 2600, [2005] EWCA Civ 192, Times 07-Mar-2005, [2005] CP Rep 28, [2005] ACD 100, [2005] 4 All ER 1, [2005] 3 Costs LR 455

Links:

Bailii

Statutes:

Supreme Courts Act 1981 51, Civil Procedure Rules 43 48

Jurisdiction:

England and Wales

Citing:

Cited – McDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
Cited – British Columbia (Minister of Forests) v Okanagan Indian Band 2003
(Supreme Court of Canada) A challenge was to be made by Indian Bands to a prohibition on logging on their lands without prior authorisation. They asserted aboriginal title to the land in question and complained of a breach of their constitutionally . .
Cited – Ritter v Godfrey CA 1920
The trial judge had refused to award costs to a successful defendant in a clinical negligence action. He was mainly influenced in this regard by the attitude the defendant had adopted in response to a letter before action, which, in the words of the . .
Cited – Regina v Lord Chancellor’s Department ex parte Child Poverty Action Group Admn 6-Feb-1998
The claimant sought an order with regard to its costs in an anticipated application to the court. The application was refused. Requests in a public interest action for an advance order for costs could only be awarded in very exceptional . .
Cited – In re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .
Cited – In Re Axa Equity and Law Life Assurance Society Plc; In Re Axa Sun Life Plc ChD 19-Dec-2000
A policyholder in a mutual life insurance company who sought to oppose a proposed re-organisation was entitled to a pre-emptive order for his costs. His position was akin to that of a minority shareholder in a company undergoing a similar proposal, . .
Cited – Steele Ford and Newton v Crown Prosecution Service (No.2) HL 1993
The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Davies v- Eli Lilley and Co CA 1987
The court upheld an order made by Hirst J in the Opren litigation to the effect that the 1500 plaintiffs should contribute rateably to the costs incurred by the legally aided lead plaintiff in a test action. Order 62 Rule 3(3) was concerned with the . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – C v FC (Children Proceedings: Costs) FD 2004
Practice in the Family Division has departed from the ‘costs follow the event’ principle in significant respects. The court brought together recent cases on this topic. . .
Cited – Keller v Keller and Legal Aid Board CA 21-Oct-1994
The standard practice of not awarding costs in children cases overrides the possibility of making a hardship order from Landlord. Costs orders are unusual in custody disputes and no order was to be made against the Legal Aid Board in favour of an . .
Cited – Sutton London Borough Council v Davis (Number 2) FD 8-Jul-1994
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour. The local authority appealed against the costs order. In doing so the authority urged the court to apply, by . .
Cited – R v R (Costs: Child Case); In re R (a Minor) CA 5-Dec-1996
The court analysed the reasons why costs orders were generally not made in cases involving children. . .
Cited – Regina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
Cited – Chief Constable of North Wales Police v Evans 2-Jan-1982
. .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – New Zealand Maori Council v Attorney-General of New Zealand PC 1994
The board declined to make an order for costs against the unsuccessful appellants where they were not pursuing the proceedings out of any motive of private gain, but ‘in the interests of taonga which is an important part of the heritage of New . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Regina v Her Majesty’s Coroner for Inner London North ex parte Peter Francis Touche CA 21-Mar-2001
The applicant’s wife had died of a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The coroner decided not to hold an inquest. The issue raised was whether he was required to hold an inquest because there . .
Cited – Regina v Merthyr Tydfil Crown Court, ex parte Chief Constable Dyfed Powys Police QBD 9-Nov-1998
The Chief Constable, on good grounds, objected to the transfer of a justices’ on-licence to a Mrs W. Mrs W appealed and the Chief Constable, having objected to the transfer, became a respondent. On the appeal Mrs W contended that, since the conduct . .
Cited – Regina v Secretary of State for the Environment, ex parte Rose Theatre Trust Co QBD 1990
The remains of an ancient theatre had been discovered during the development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd QBD 1995
A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to . .
Cited – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others No 2 HL 17-Jul-1995
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the . .
Cited – Regina v Secretary of State for the Environment ex parte Shelter 1997
The court refused to make a costs order against Shelter on the grounds that: (i) there were already pending before the court a sequence of individual cases raising precisely the same issue; (ii) the legal question raised was of genuine public . .
Cited – Coventry City Council v Finnie and Another QBD 2-May-1996
No undertaking for damages was to be required of a Local Authority exercising a statutory duty. The grant of an injunction in favour of a local authority performing law enforcement duties did not necessarily carry with it a cross-undertaking on . .
Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Regina v Hammersmith and Fulham London Borough Council Ex Parte Trustees of the Council for the Protection of Rural England QBD 26-Oct-1999
The authority gave permission for a new shopping centre up to 600,000 sq ft as an urban project. The Trustees sought that the permission be set aside since the council had not undertaken an environmental impact assessment, and under the EC Treaty . .
Cited – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
Cited – Jones v Coxeter 1742
Lord Hardwicke said: ‘The giving of costs in equity is entirely discretionary and is not at all conformable to the rule at law.’ . .
Cited – Corporation of Burford v Lenthall 1743
The court considered how the Courts of Equity had dealt with orders for costs: ‘Courts of Equity have in all cases done it not from any authority but from conscience and arbitrio boni viri, as to the satisfaction on one side or other on account of . .
Cited – Andrews v Barnes CA 12-Jun-1888
The parish vicar and his churchwardens brought an action to recover a small sum paid to the members of a local committee for charitable purposes, saying the gift had been made subject to a condition which it proved impossible to fulfil.
Held: . .
Cited – Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Sep-2004
The court considered whether a protective costs order should be granted in favour of the claimants in relation to a substantive appeal in a matter in which they had been protected by an undertaking by the Home Office not to seek an order for costs . .
Cited – Musa King v Telegraph Group Ltd SCCO 18-May-2004
. .
Cited – Oshlack v Richmond River Council 1998
(High Court of Australia) The appellant had been concerned about the habitat of the endangered Koala, and complained about the absence of any fauna impact statement before a planning consent to development was granted. The judge at first instance . .
Cited – British Columbia (Minister of Forests) v Okanagan Indian Band 2003
(Supreme Court of Canada) A challenge was to be made by Indian Bands to a prohibition on logging on their lands without prior authorisation. They asserted aboriginal title to the land in question and complained of a breach of their constitutionally . .
Cited – Village Residents’ Association Ltd v An Bord Pleanala (No 2) 2000
(Irish High Court) The court faced the first application for a Protective Costs Order (PCO) in the High Court of Ireland.
Held: There was jurisdiction to make such an order, but it was difficult in the abstract to identify the type or types of . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .

Cited by:

Cited – Goodson v HM Coroner for Bedfordshire and Luton and Another (No 2) CA 12-Oct-2005
The applicant intended to appeal refusal of her challenge to the verdict of the coroner. For the first time at appeal she sought a protective costs order.
Held: The Corner House case established that a request for a protective costs order . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Compton, Regina (on the Application of) v Wiltshire Primary Care Trust Admn 26-Nov-2007
Applicaton for protective costs order. The court considered the report of a working group on such orders which said that to be suitable for a PCO a case must be a ‘public interest case’, but found it difficult to define what sort of case fell within . .
Cited – Buglife – The Invertebrate Conservation Trust, Regina (on the Application of) v Thurrock Thames Gateway Development Corp CA 4-Nov-2008
The court considered an application for a protective costs order in judicial review proceedings in environmental law cases.
Held: The central decision was Corner House Research, but that was to be applied purposively and not rigidly. It was . .
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 . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
Cited – Morgan and Another v Hinton Organics (Wessex) Ltd CA 2-Mar-2009
The claimants had alleged that smells from a composting site near their homes constituted a private nuisance. Following the discharge of an interim injunction, Judge Seymour ordered the claimants to pay the costs of the injunction proceedings. The . .
Cited – Leeds Group Plc v Leeds City Council ChD 21-Apr-2010
Application had been made to the defendant to register as a common land belonging in part to the claimant and in part to the defendant. The claimant objected to the registration. The defendant did not. . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
Cited – London Borough of Camden v The Parking Adjudicator and Others Admn 18-Feb-2011
The council appealed after parking adjudicators allowed four appeals where the council had imposed a surcharge on the payment of civil parking penalties where payment was made by credit card. . .
Cited – Austin and Others v Miller Argent (South Wales) Ltd CA 29-Jul-2011
The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Leading Case

Updated: 04 May 2022; Ref: scu.223080

Giles v Thompson, Devlin v Baslington (Conjoined Appeals): HL 1 Jun 1993

Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in practical terms a gap in the remedies available to the motorist, from which the errant driver, and hence his insurers, frequently profit’. All aspects of the transactions should be taken together, and looked at as a whole, in order to answer what was the single and only question for a court facing the champerty argument, that is: ‘Whether there had been wanton and officious intermeddling with the disputes of others, in which the meddler has no interest whatsoever, and where the assistance he renders to one or the other party, is without justification or excuse.’
There had been no assignment of the damages to the accident hire company nor were they entitled to be paid only out of the damages recovered: ‘The company is not an assignee or chargee of the cause of action or its fruits, although it expects that the damages for loss of use will form part of the assets from which the motorist will in due course pay for the substitute. The liability for the car hire, although suspended as regards enforcement, rests upon the motorist throughout. It is a real liability, the incurring of which constitutes a real loss to the motorist. Whatever the publicity material may have conveyed, the provision of the substitute car was not ‘free’.’

Judges:

Lord Mustill, Lord Keith of Kinkel, Lord Ackner, Lord Jauncey of Tullichettle, Lord Lowry

Citations:

Gazette 14-Jul-1993, Times 01-Jun-1993, [1994] 1 AC 142, [1993] UKHL 2, [1993] 3 All ER 321

Links:

Bailii

Statutes:

Criminal Law Act 1967 14

Jurisdiction:

England and Wales

Citing:

Appeal from – Giles v Thompson CA 1992
The interest that the rule of champerty exists to protect (the individual interest) is that of the opposite party. Steyn LJ described contingency fee agreements as ‘nowadays perhaps the most important species of champerty’ and were ‘still unlawful’. . .
Cited – British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd 1908
The court explained the law underlying the civil and criminal penalties for the maintenance of an action by third parties: ‘It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no . .
Cited – Trendtex Trading Corporation v Credit Suisse CA 1980
A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it.
Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases . .
Cited – Martell v Consett Iron Co Ltd ChD 1955
In a case of maintenance (as opposed to champerty), a stay should not be ordered. The laws relating to maintenance and champerty must develop to accommodate to changing times. . .
Cited – Harlow and Jones v Panex (International) Ltd ChD 1967
The sellers claimed under a sale contract against buyers who had refused to accept goods. By reason of the buyer’s non-acceptance of the goods, the sellers had incurred storage charges to their own suppliers with whom they had entered into an . .
Cited – Donnelly v Joyce CA 18-May-1973
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother’s loss of earnings. This was objected to on the grounds that . .
Cited – Trendtex Trading Corporation v Credit Suisse HL 1981
A party had purported to sue having taken an assignment of a dishonoured letter of credit, in the context of the abolition of maintenance and champerty as crimes and torts in the 1967 Act.
Held: The assignment was struck down as champertous, . .
Cited – McAll v Brooks CA 1984
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff’s claim for damages . .
Cited – Cosemar SA v Marimarna Shipping Co; The Mathew 1990
The ship’s master had failed to endorse the bill of lading properly so as to reverse the liability for payment of freight to the time charterers. The arbitrator had found that the mistake had caused no loss since the shippers would probably have . .
Cited – Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
Cited – H Cousins and Co Ltd v D and C Carriers 1971
. .

Cited by:

Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – De Crittenden v Bayliss CA 21-May-2001
The defendant sought leave to appeal saying the agreement under which the plaintiff had sued was champertous. Leave given. . .
Cited – De Crittenden v Bayliss CA 17-Jan-2002
The defendant appealed a judgment saying the arrangement under which the plaintiff had conducted the litigation was champertous.
Held: The appeal failed. ‘[A]lthough some of what Mr De Crittenden did could be described as ‘solicitors work’, . .
Cited – Bee v Jenson CA 13-Sep-2007
The claimant hired a car whilst his own, damaged by the defendant, was being repaired. His insurer sought to recover the cost from the other driver. The insurer had first arranged te hire with one company, but then another provided a finacial reward . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Cited – TGA Chapman Limited; Benson Turner Limited v Christopher and Sun Alliance and London Insurance Plc CA 8-Jul-1997
A section 51 application was made because the cover was limited under the defendant’s liability policy and insufficient to pay all the damages, let alone any part of the costs, and the defendant was not worth powder and shot. Nonetheless the claim . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Cited – Murphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.80825

Warner Brothers Pictures v Nelson: 1936

Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist.
Held: Though a decree of specific performance, either in the primary or the secondary sense, is not normally available to enforce a contract of personal service, the defendant was to be restrained by injunction from rendering services in any motion picture or stage production for anyone save the original employer, but the injunction was granted only for up to three years, although the contract might have run for six years, on the basis that the lesser of three years or the actual term would reasonably protect the plaintiff against the consequences of the defendant’s breach.

Judges:

Branson J

Citations:

[1937] 1 KB 209, [1936] 3 All ER 160, 106 LJKB 97

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 02 May 2022; Ref: scu.440458

Barnes v Jarvis: 1953

Lord Goddard CJ said: ‘A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered.’

Judges:

Lord Goddard CJ

Citations:

[1953] 1 WLR 649, [1953] 1 All ER 1061

Cited by:

Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.433372

Berd v Lovelace: 1576

A solicitor served with process to testify, ordered not to be examined. Thomas Hawtry, gentleman was served with a subpoena to testify his knowledge touching the cause in variance ; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same, and that he shall be in no danger of any contempt, touching the not executing of the said proceas

Citations:

[1576] EngR 10, (1576-77) Cary 61, (1576) 21 ER 33 (E)

Links:

Commonlii

Cited by:

Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 02 May 2022; Ref: scu.431168

Waters v Berd: 1579

Attachment upon the defendant’s confession he was served. – William Smallwood made oath, the defendant confessed he was served with a subpoena at the plaintant’s suit, who not appeared : therefore an attachment ia awarded against the defendant, to the Sherriff of Essex

Citations:

[1579] EngR 144, (1579) Cary 73, (1579) 21 ER 39 (C)

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.431026

Regina v Edmundson: 1859

Lord Campbell set out the principle of interpretation known as ‘ejusdem generis’ to the effect that ‘where there are general words following particular and specific words, the general words must be confined to the things of the same kind as those specified’

Judges:

Lord Campbell

Citations:

(1859) 28 LJMC 213

Cited by:

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

Litigation Practice

Updated: 02 May 2022; Ref: scu.430235

Hussain v Hussain: CA 1986

Sir John Donaldson MR said: ‘Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in like terms and that the contrary has never been suggested . . Undertakings may be recorded in an order of the court, as occurred in this case, but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules [on committal to prison] apply.’
He observed that ‘it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally’. He went on to say, the ‘most obvious and convenient way . . is to record the undertaking in an order of the court’.
Neill LJ and Ralph Gibson LJJ agreed. Neill LJ said that: ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served on the person who gave the undertaking with a penal notice. He went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. In a case where an undertaking has been given, even where the court makes no order, that ought itself be recorded in a formal order which should recite in full any undertaking that has been given.
Neill LJ agreed, saying that ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served personally on the giver of the undertaking with a penal notice. He also emphasised the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached.

Judges:

Sir John Donaldson MR, Neill, Ralph Gibson LJJ

Citations:

[1986] Fam 134, [1986] 2 WLR 801, [1986] 1 All ER 961

Cited by:

Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 02 May 2022; Ref: scu.424850

Stevens v General Steam Navigation Co Ltd: CA 1903

A re-enacting provision modified the original provision so as to include the words ‘all machinery or plant used in the process of loading or unloading of any ship in any dock, harbour or canal.’ The provision introduced the word ‘harbour’. This was a very substantial change for those affected by it.
Held: The proper approach to the construction of statutory provisions may change if Parliament directs that the provisions are to be construed in terms of a later, modified, enactment.
Stirling LJ stated: ‘The original and re-enacted clauses need not be identical, and the sole question is whether when the modification takes the form of extending and not narrowing the former provisions it amounts to a modification within the meaning of the Interpretation Act.’
Collins MR asked whether the introduction of the word ‘harbour’ was ‘so radical an alteration of the previously existing section as not to fall within the term ‘modification’?’ He concluded that the modified provision was re-enacted – ‘with the intention of altering the existing state of things by the modification of the Factory Act 1895. This intention of the Interpretation Act 1889, enabled the Legislature to carry out in the way in which it has been carried out, for in my opinion there is no reason to limit the word ‘modification’, which is equally applicable whether the effect of the alteration is to narrow or to enlarge the provisions of the former Act.’

Judges:

Stirling LJ

Citations:

[1903] 1 KB 890

Cited by:

Cited – Morrison Sports Ltd and Others v Scottish Power SC 28-Jul-2010
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.421500

Standrin v Yenton Minster Holmes Ltd: CA 28 Jun 1991

The parties had exchanged letters asserting an insurance claim. They had been marked without prejudice, and one party now objected to their admission in evidence.
Held: The letters did not have the protection sought. At the time they were written, there was no dispute between the parties, and therefore the letters could not be an attempt to settle a dispute.

Judges:

Parker LJ

Citations:

Times 22-Jul-1991

Cited by:

Cited – Schering Corporation v CIPLA Ltd and Another ChD 10-Nov-2004
The defendants appealed against a refusal to strike out the patent infringement proceedings issued by the claimant, saying the only evidence offered was a letter written by the defendants which was headed ‘without prejudice’.
Held: The . .
Cited – Best Buy Co Inc and Another v Worldwide Sales Corp. Espana Sl ChD 8-Jul-2010
The claimant accused the defendant of making threats in connection with trade mark applications. The claimants operated under US trade marks associated with ‘Best Buy’ and sought similar marks in Europe. The defendant company traded under a similar . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.420676

Hytrac Conveyors Ltd v Conveyors International Ltd: CA 1982

A plaintiff should serve his statement of case promptly following an application for an interim injunction. It can be abuse of process to bring an action where there was no evidence of a reasonable basis for it.

Judges:

Lawton LJ

Citations:

[1983] 1 WLR 44, [1982] 3 All ER 415, [1983] FSR 63

Cited by:

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.

Intellectual Property, Litigation Practice

Updated: 02 May 2022; Ref: scu.421369

Rasu Maritima SA v Perusahaan (the Pertamina): CA 1978

Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction.

Judges:

Lord Denning MR

Citations:

[1978] 1 QB 644

Statutes:

Supreme Court of Judicature (Consolidation) Act 1925 45

Citing:

Applied – Beddow v Beddow CA 1878
The power in the section embraced the grant of an injunction ‘in any case where it would be right or just to do so’. . .

Cited by:

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

Litigation Practice

Updated: 02 May 2022; Ref: scu.416372

Central Insurance Co Ltd v Seacalf Shipping Corpn (The Aiolos): CA 1983

Where an insurer indemnifies the assured, he is entitled to exercise, through subrogation, any claim the assured may have against the person who caused the losses. Absent an assignment of the claim, it belongs to the assured and the insurer does not have a proprietary interest in it.
Held: The Court declined leave to amend a pleading to add the names of co-plaintiffs whose claims were time barred.

Judges:

Oliver LJ

Citations:

[1983] 2 Lloyd’s Rep 25

Cited by:

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

Litigation Practice

Updated: 02 May 2022; Ref: scu.416013

Brereton v Edwards: 1888

Money in the control of the Court may be the subject of execution with the leave of the Court. The Judgments Acts did not apply to money held in Court. Lord Esher MR said: ‘section 14 does not apply to money . . it applies only to Government stock, funds or annuities, and stock or shares in a company.’ As to Haly v Barry, ‘That decision seems to me to amount to this, that the order nisi is the charging order, but that it stands in abeyance until it is made absolute. When, however, it is made absolute the order nisi is the charging order, and it takes effect from the date when it was originally made. The result of this is, that the plaintiffs’ charging order is prior in date to the order for payment to the guardians.’

Judges:

Lord Esher MR

Citations:

[1888] 21 QBD 488

Jurisdiction:

England and Wales

Citing:

Cited – Haly v Barry CA 1868
A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor’s estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but . .

Cited by:

Cited – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.415920

O’Regan v Iambic Productions: 1989

The court set out a series of elements to be taken into account when making a Mareva asset freezing order: ‘1. The nature of the assets and the ease with which they can be dissipated.
2. The nature and financial standing of the defendant business.
3. The length of time the defendant has been in business for.
4. Any express or implied statement of intent made by the defendant in respect of dissipating assets.
5. Whether the substantive claim relates to dishonesty.
6. Previous compliance with Court orders.’

Citations:

(1989) 139 NLG

Cited by:

Applied – Shepherd Construction Ltd v Berners (BVI) Ltd and Another TCC 25-Mar-2010
The defendants sought a release from an asset freezing order, saying that there was no good reason to anticipate any dissipation of assets. An action between the parties had been settled on terms, but the defendant had not met payments. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.416018

Bater v Bater: CA 1950

The trial judge had said that the petitioner, who alleged cruelty by her husband, must prove her case beyond reasonable doubt.
Held: There had been no misdirection. Each member of the court had found difficulty in distinguishing between the two standards.
Denning LJ spoke of the levels of proof needed: ‘The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case.’ and
‘So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.’
Bucknill LJ asked; ‘If a court has to be satisfied, how can it at the same time entertain a reasonable doubt.’

Judges:

Denning LJ, Bucknill, Somervell LJJ

Citations:

[1950] 2 All ER 458

Jurisdiction:

England and Wales

Cited by:

Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 02 May 2022; Ref: scu.415914

In re Prior: CA 1921

The court considered its equitable powers over funds it held as security. The court ordered equitable execution.

Citations:

[1921] 3 KB 333

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.415921

Ninemia Maritime Corporation v Trave Schiffahrtsgellschaft MbH: 1983

A claimant seeking an asset freezing order needs to identify ‘solid evidence of dissipation’.

Citations:

[1983] 2 Lloyd’s Reports 600

Cited by:

Cited – Shepherd Construction Ltd v Berners (BVI) Ltd and Another TCC 25-Mar-2010
The defendants sought a release from an asset freezing order, saying that there was no good reason to anticipate any dissipation of assets. An action between the parties had been settled on terms, but the defendant had not met payments. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.416017

Robinson v Unicos Property Corpn Ltd: CA 1962

The plaintiff sought an additional averment (unsuccessfully objected to as constituting the addition of a new cause of action) to plead that the first plaintiff sued as equitable assignee of the benefit of a contract made with the defendant (the contract itself having been pleaded in the original claim).
Held: Holroyd Pearce LJ explained the concept of a ‘new cause of action’ as meaning ‘a new claim made on a new basis.’

Judges:

Holroyd Pearce, and Harman LJJ

Citations:

[1962] 1 WLR 520, [1962] 2 All ER 24

Jurisdiction:

England and Wales

Cited by:

Applied – Red Sea Insurance Co Ltd v Bouygues SA and Others 1993
Hong Kong . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.416015

Neumann v Bakeaway Ltd: CA 1983

(Note) The court considered when to grant relief to the Sherriff against an interpleader on a compliant by a debtor.
Held: The appropriate test to apply was whether the claimant had suffered a ‘real and substantial grievance’. The court acknowledged that a sale of the claimant’s goods at a significant undervalue could give rise to a substantial grievance
Sir John Pennycuick observed: ‘I abstain from expressing a concluded view as to the meaning and scope of the expression ‘substantial grievance’. The authorities cited to us on this question do not seem to me wholly easy to reconcile.’
Lane LJ said: ‘It is the quality of the sheriff’s admitted wrong which is relevant.’
Megaw LJ said: ‘I am prepared to assume for the purposes of this appeal that it would constitute ‘a substantial grievance,’ within those words as they have been used in the number of cases which have been cited to us, if there were material on which it could be said to be fairly arguable that the sheriff, having, without any misconduct or negligence on his part, seized and sold goods which did not in fact belong to the judgment debtor, has sold them at a price which was substantially less than their true value at the date when they were thus sold.’

Judges:

Lane LJ, Megaw LJ, Sir John Pennycuick

Citations:

[1983] 1 WLR 1016

Cited by:

Cited – Huntress Search Ltd v Canapeum Ltd and Another QBD 28-May-2010
The court was asked whether it had been correct to refuse relief to the High Court Enforcement Officer in the form of a restraint on an interpleader when this was sought by the applicant.
Held: The test was whether there was evidence entitling . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.416221

Observer Ltd v Gordon: 1983

The sherriff sought relief against an interpleader by the debtor against whom execution had been issued. Glidewell J said: ‘First of all, what is the proper approach of the court to an application on behalf of the sheriff that the court should order ‘no action’ be brought? The court, in this sense, means the master in the first instance and, on appeal, the judge. In my view, one can properly draw the analogy of Order 14 proceedings in reverse, i.e. to be allowed to proceed with his action it is for the claimant to show that he has a real chance of defeating both defences available to the sheriff. If he shows this, a ‘no action’ order should not be made and the claimant should be allowed to continue with his action’. The test was what was ‘fairly arguable.’

Judges:

Glidewell J

Citations:

[1983] 1 WLR 1008

Litigation Practice

Updated: 02 May 2022; Ref: scu.416222

Roe and Another v Robert McGregor and Sons Ltd; Bills v Roe: CA 1968

The plaintiff was driving a van at night. He didn’t see a ‘road closed’ sign erected by the defendant contractors, and proceede down a 30 ft bank injuring himself and his passenger. He said the contractors’ the sign was inadequate and that he had had very little to drink and when counsel for the defendants sought to cross-examine him to suggest that he was drunk, the judge would not allow it. The judge found in favour of the driver and his passenger. Later, the contractors discovered credible evidence that the driver had been drunk.
Held: The contractors’ appeal succeeded after fresh evidence from a passenger and a publican was allowed which showed that he had been drinking. The judgment was set aside, and a re-hearing ordered. The contractors’ solicitors didn’t interview the passenger supposing, reasonably, that he would be unlikely to give evidence against his friend the driver.
Harman LJ said: ‘It is by no means to be taken on these motions that this evidence is likely in the end to be believed. These motions are brought for leave to adduce this extra evidence. But in my judgment that would be, in a case of this sort, a hopelessly inconvenient course to take, because quite clearly, if Harrison and the publican are to have their evidence admitted, evidence to rebut what they say must also be admitted and there must be evidence on one side and the other which will very greatly alter the whole shape of the testimony. The only course, I think, for this court, if it thinks that it should do anything, is to order a new trial and I think that counsel in the end conceded really that that was the proper course to take if the court were moved to take any course.’
As to the alleged failing of the solicitor, Harman LJ said: ‘It was said that the contractors’ solicitor knew that [the passenger] had been in the car: she had only, as it is said, to go to him, ask him for a statement, and the whole matter would have come out at a much earlier stage, and there would have been no need to come at this date and ask for the admission of fresh evidence. It is said that the solicitor made an error of judgment which, although perhaps understandable, be it said, was not excusable in the sense that she could have been said to have acted with reasonable diligence. In my opinion, that charge entirely fails. I cannot see that there was any default at all on the part of the very experienced solicitor acting for the contractors in not approaching [the passenger]. He was a man directly in the other camp. He might be expected at any moment to start proceedings himself for damages, although he had not done so nor sent any letter making any claim hitherto. He was a person who was unlikely in the extreme, it might reasonably be supposed, to be willing to give evidence against his friends in the car that they were all drunk at the time. And I cannot think that it was any part of the duty of this lady acting as solicitor to the contractors to the contractors to go and try to worm something out of [the passenger].’

Judges:

Harman LJ

Citations:

[1968] 1 WLR 925, [1968] 2 All ER 636

Citing:

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

Cited by:

Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited – Turcu v News Group Newspaper Ltd CA 26-May-2006
The appellant had failed in his action for damages against the newspaper which had accused him of a plot to kidnap the wife of an England footballer. He now sought leave to appeal.
Held: Evidence unavailable at the trial now suggested that the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 02 May 2022; Ref: scu.414952

Samson And Gatefield’s Case: KBD 1653

Error was brought to reverse a judgment given in the Court of Virge in an action upon the case; where the original process fuit a sommons, whereas, it ought to have been an attachment.

Citations:

[1653] EngR 1662, (1653) Godb 400, (1653) 78 ER 236 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 02 May 2022; Ref: scu.413969

Brown v Nelson: 1658

Whether a judgement given against one of two defendants were good.
An action of debt upon the Statute 7 Ed. 6. for selling of wine without licence, was brought against 2 defendants, they both plead nil debet, whereupon issue being joyned, a special verdict was found, viz. that as to one nil debet, and that as to the other he had drawn a pint of wine without licence, and upon this, judgement was given against him that was found culpable; it was questioned whether this were a good judgement. But Roll Chief Justice concluded it was a good judgement, and cited many cases adjudged in point to prove it, and one in particular in an action upon the statute for dying with logwood, and he took a difference between an action grounded upon a joynt contract, or a joint trespasse, and an action brought joyntly upon a statute against two, or for a tort done by two, as this is upon the statute. In the first case judgement cannot be given against one of the contractors, in the other it may.

Citations:

[1658] EngR 107, (1658) Sty 317, (1658) 82 ER 741 (A)

Links:

Commonlii

Litigation Practice, Licensing

Updated: 02 May 2022; Ref: scu.410898

Canada Enterprises Corp Ltd v MacNab Distilleries Ltd: CA 1976

(Decided in 1976) ‘inexpedient’ in the rule, simply means unjust. Because there was not the requisite identity of parties, the strict requirements of set off were not fulfilled.

Citations:

[1987] 1 WLR 813

Statutes:

RSC Order 47 R 1

Cited by:

Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.410716

Burnet v Francis Industries plc: CA 1987

Where a judgment debt was owed by a subsidiary company to a third party, and where the subsidiary’s parent company had a claim against the same third party, the court had jurisdiction to order a stay of execution of the judgment.

Citations:

[1987] 1 WLR 802

Litigation Practice

Updated: 02 May 2022; Ref: scu.410715

Braybrook v The Basildon and Thurrock University NHS Trust: 7 Oct 2004

Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give effect to the overriding objective.
2. Among the matters to be considered will be:
(a) The reasons and justifications for the Application which must be made in good faith;
(b) The balance of the prejudice to the parties and whether a party has been the author of any prejudice they might suffer;
(c) The prospect of success of any issue arising from the withdrawal of an admission;
(d) The public interest in avoiding possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvoring.
3. The nearer any Application is to a final hearing, the less chance of success it will have, even if the party making the Application can establish clear prejudice. This may be decisive if the application is made shortly before the hearing.’

Judges:

Sumner J

Citations:

[2004] EWHC 3352

Statutes:

Civil Procedure Rules 14

Cited by:

Cited – Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd TCC 6-May-2010
The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The . .
Approved – Sowerby v Charlton CA 21-Dec-2005
Before proceedings, in without prejudice discussions, the defendant made certain admissions. They were withdrawn before proceedings commenced. The claimant said that they could not be withdrawn.
Held: Until proceedings began the Civil . .
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.
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice

Updated: 02 May 2022; Ref: scu.412292

Regina v Tottenham Magistrates Court ex parte Gleaves: Admn 18 Dec 1992

An application for permission to bring judicial review and the judicial review proceedings themselves (whether in a civil or criminal cause or matter) are all civil proceedings and are caught by a civil proceedings order against the applicant.
Evans LJ concluded that all proceedings under RSC Order 53 were civil proceedings: ‘The matter can be tested in this way. So far as these proceedings are concerned, that is to say, Mr Gleaves’ application for judicial review . . there is no prosecutor and there is no defendant. Indeed . . the intended defendant in the Magistrates Court is not necessarily a party to these proceedings.
This is an application by Mr Gleaves and the respondent is the Tottenham Magistrates Court. These are civil proceedings. Mr Gleaves seeks to invoke the powers of the civil courts admittedly for the purposes, as he sees them, of the criminal proceedings which he seeks to institute in the magistrates court but does not alter the fact in my view that he is invoking the powers of the civil court and that an application under O 53 at all its stages, even when the application relates to a criminal cause or matter, is nevertheless properly to be regarded as a civil proceeding.’

Judges:

Evans LJ and Otton J

Citations:

CO/2253/90, Unreported 18 December 1992

Jurisdiction:

England and Wales

Cited by:

Approved – Ew v Director of Public Prosecutions and Others CA 11-Feb-2010
The claimant was subject to an order requiring him to obtain leave before commencing any civil proceedings. He commenced a private prosecution which the respondent later decided to take over and discontinue. He sought judicial review of that . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review

Updated: 02 May 2022; Ref: scu.408585

Regina v Highbury Corner Magistrates Court ex parte E: 1991

An application for permission to apply for judicial review of a decision taken in the course of civil proceedings is itself a civil proceeding.

Citations:

[1991] 1 WLR 388

Jurisdiction:

England and Wales

Cited by:

Cited – Ew v Director of Public Prosecutions and Others CA 11-Feb-2010
The claimant was subject to an order requiring him to obtain leave before commencing any civil proceedings. He commenced a private prosecution which the respondent later decided to take over and discontinue. He sought judicial review of that . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.408583

Regina v Blandford Magistrates Court ex parte Pamment: CA 1990

The Applicant was charged and remanded into custody by the Justices, having refused conditional bail. Bail was later granted, but he sought judicial review of the original remand decision, just before his trial, which then intervened. After the trial, the Divisional Court quashed the remand decision adjourning the claim for damages. It was said that section 18(a) prevented an appeal. The Justices sought to appeal to the Court of Appeal, contending that given the termination of the criminal trial, the jurisdictional bar enshrined in Section 18(1)(a) of the Supreme Court Act 1981 did not apply.
Held: The Court did not have jurisdiction to consider the appeal. It was argued that when the judicial review application was heard by the Divisional Court, the criminal proceedings were no longer in existence.
Taylor LJ said: ‘If the Divisional Court’s decision was not in a criminal cause or matter, in what type of proceeding was it made? It cannot have been a decision in vacuo and, for my part, I see no basis in principle or authority for attributing such a chameleon character to a cause or matter as to make it change from criminal to civil simply because the proceedings are concluded or because the review of the decision in such cause or matter may be too late to affect the outcome of the proceedings. In my opinion, the judgment of the Divisional Court in the present case was made in a criminal cause or matter’.
Lord Donaldson MR, emphasizing the words of Lord Esher MR ‘at whatever stage of the proceedings the question arises’ [in Ex parte Woodhall 20 QBD 832, at p. 836], added that this formulation: ‘is apt to include the stage at which proceedings are in contemplation, the stage during which they are being prosecuted and the stage which follows following the giving of the judgment of the court, a stage at which it can be said that the court is functus officio’.

Judges:

Lord Donaldson MR, Taylor LJ

Citations:

[1990] 1 WLR 1490

Jurisdiction:

England and Wales

Citing:

Cited – Ex parte Waldron CA 1986
The court was asked whether section 139 precluded a mental patient from applying for leave to move for judicial review.
Held: A restriction on the bringing of civil or criminal proceedings imposed by the section 139 did not apply to . .

Cited by:

Cited – Ew v Director of Public Prosecutions and Others CA 11-Feb-2010
The claimant was subject to an order requiring him to obtain leave before commencing any civil proceedings. He commenced a private prosecution which the respondent later decided to take over and discontinue. He sought judicial review of that . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Litigation Practice

Updated: 02 May 2022; Ref: scu.408586

Fulham (orse Fullam) v Newcastle Chronicle and Journal Ltd and Another: CA 1977

A local newspaper circulating in Teesside, where the claimant had been appointed deputy headmaster of a school, published an article in 1973 saying of the claimant that he was a former Roman Catholic priest who had left his parish in the Salford diocese and later married and it was claimed of him that he ‘went off very suddenly from the parish where he was a curate about seven years ago’. In fact he had given up the priesthood in 1962, married in 1964, and his wife had a child in 1965.
Held: Where an innuendo is relied on the claimant must generally specify the persons who are said to know the ‘special facts’ that would lead them to the identification or meaning relied on. Only a reader with special knowledge of the facts, either of the date of the claimant’s marriage or of that of the birth of his child, could derive an adverse impression from the article and that it was unlikely that readers with such special knowledge lived in the area of the newspaper’s circulation. That being so, the claimant was bound to identify readers whom he alleged knew of those facts.
Scarman LJ said that sometimes facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely on a presumption or inference that some readers will have known them, and ‘there may well be cases in which it would not be necessary to plead more than the fact of publication by a newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts.
For instance, the facts may be very well known in the area of the newspaper’s distribution – in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper’s readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo.’
Lord Denning MR stated that it was ‘just possible’ that someone ‘had jumped to the conclusion that before he left the Salford diocese, and while still a priest, he [the claimant] had married and fathered a child. But such a person would be so rare and so exceptional that the case on legal innuendo would not stand a chance unless that person was called’.

Judges:

Lord Denning MR, Scarman LJ

Citations:

[1977] 1 WLR 651

Jurisdiction:

England and Wales

Cited by:

Cited – Budu v The British Broadcasting Corporation QBD 23-Mar-2010
The defendant sought to strike out the claimant’s action in defamation. It had reported that the police had withdrawn an employment offer to claimant after doubting his immigration status.
Held: The claims should be struck out. The articles . .
Cited – Baturina v Times Newspapers Ltd QBD 31-Mar-2010
The claimant sought damages in defamation in respect of an article published by the defendant newspaper. She was the wife of the Mayor of Moscow, and was required to disclose on a public list assets held by her. The defendant said that she owned a . .
Cited – Wright v Caan QBD 27-Jul-2011
The claimant sought damages in defamation and malicious falsehood and in respect of a conversation with a journalist and the defendant’s website. The defendant had made offers of support to her business venture in a television program. After she . .
Cited – McAlpine v Bercow QBD 24-May-2013
The claimant alleged defamation in a tweet by the defendant. The court now decided as a preliminary point, the meaning of the words: ‘Why is Lord McAlpine trending? *Innocent face*’. There had been other but widespread (mistaken) allegations against . .
Cited – Economou v De Freitas QBD 27-Jul-2016
Failed action for defamation on rape allegations
The claimant had been accused by the defendant’s daughter of rape. He was never charged but sought to prosecute her alleging intent to pervert the course of justice. She later killed herself. The defendant sought to have the inquest extended to . .
Cited – Monroe v Hopkins QBD 10-Mar-2017
The claimant, a transgender chef and food blogger claimed in defamation against the defendant journalist in respect of two tweets. The court now set out to decide the meanings, whether they were defamatory by nature, and whether the serious harm . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation

Updated: 02 May 2022; Ref: scu.405999

Bruce v Odhams Press Ltd: CA 1936

The statement of claim must plead the necessary facts for the purpose of formulating a complete cause of action. The particulars of claim inform the opposing party of the case it has to meet so that it may prepare for trial and avoid the expense in preparing a case that may never be put. Scott LJ said: ‘The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word ‘material’ means necessary for the purpose of formulating a complete cause of action; and if any one ‘material’ fact is omitted, the statement of claim is bad; it is ‘demurrable’ in the old phraseology, and in the new is liable to be ‘struck out’ under Order XXV, r. 4: see Philipps v. Philipps 4 QBD 127; or ‘a further and better statement of claim’ may be ordered under Order XIX, r. 7.
The function of ‘particulars’ under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim – gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a ‘material fact’ and a ‘particular’ piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.’

Judges:

Scott LJ

Citations:

[1936] 1 KB 697

Cited by:

Cited – Budu v The British Broadcasting Corporation QBD 23-Mar-2010
The defendant sought to strike out the claimant’s action in defamation. It had reported that the police had withdrawn an employment offer to claimant after doubting his immigration status.
Held: The claims should be struck out. The articles . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 02 May 2022; Ref: scu.405998

Boeve v Skipwith: 1678

The Bill is a Supplemental Bill, to have a further Discovery from the Defendant by Way of Evidence, for the better clearing the Matters depending on the Account, which the Defendant hath not answered in the former Cause.
The Plaintiff pleaded the former Bill, to which the Defendant answered, and the Cause heard, and the Account directed.
This Court ordered the Defendant to answer to all Matters in this Bill, not answered to in the former Cause, but the Plaintiff not to reply, nor to proceed further.

Citations:

[1678] EngR 10, (1678-79) 2 Rep Ch 142, (1678) 21 ER 640 (B)

Links:

Commonlii

Citing:

See Also – Sir Ralph Bovey v Skipwith 1671
Mortgage Priorities
In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.402742

Henry Needler and Joanna v Thomas Kendall And Mary Kendall And Mary Hallett: 1680

Appeal to the House of Lords from a decree in Chancery ; and upon the Petition of the Appellants to examine Witnesses in the Cause it wa srejected, and the Petition dismissed ; and now the Appellants bring a Bill of Review; and it was decreed that the Defendants should answer and demur.

Citations:

[1680] EngR 124, (1680) Fin H 468, (1680) 23 ER 253

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.402335

Gray and Ux v Bull: 17 Nov 1682

Bill to be relieved against a release as gained by fraud; it appeared here there had been anotehr release given; and though it was said that it was got in the same manner; yet not being taken notice of in the bill nor relief prayed against it, bill was dismissed.

Citations:

[1682] EngR 494, (1682) 1 Vern 86, (1682) 23 ER 329 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 02 May 2022; Ref: scu.401591

The King v Wagstaffe, and others: 1685

The jurors being severally fined, and imprisoned till payment, as it appeared by the retorn of the habeas corpus made by the Mayor, andc. of London, or till they were otherways discharged by due course of law : the defendants offered to bring the mony into Court, and so prayed time till the next term : and there can be inconvenience, for the persons are committed but till the fines paid, and they do thus pay it under a rule : but by Twisden, this payment must be actual, and not conditional ; nor was this ever done on an execution, unless on the civil side, which Keeling agreed ; and though the Kings Counsel should consent, they could not do it ; but the retorn being filed, it was excepted, that it was said in issues joyned in indictment of trespass in contemptum domini Regis, and not Curia ; sed non allocatur. 2. They are said, committed for going against direction of the Court on issues in several trespasses, andc. not saying perpetrat’ and commissis, but only whereof the then prisoners were indicted ; sed non allocatur, this being the question then to be tried. 3. The jury (per Curiam on Yelvert. 23, Whartons case, and in Noy 48, Bendlows Rep. Norris’s case, which was Henego Pierce’s case) are not judges of fact, so as to go clearly against it. every Inferiour Cour t mig

Citations:

[1685] EngR 3558, (1685) 1 Keb 938, (1685) 83 ER 1331 (B)

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.400333

CCXIII The Queen And Sir John Savells Case: 1687

A bill of intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence, and upon issue joyned, the matter was tryed by the records, and tbereupon judgment was given for the Queen, and an injunction for the possession awarded accordingly. Sir Robert dyed, and now Sir John Savell, son and heir of the said Sir Robert brought a writ of error in the Exchequer Chamber upon the statute of 31 E. 3. the perclose of which writ was, ad grave damnum ipsius Johannis Savell filii and haeredis dicti Roberti. It was objected against the writ, that no writ of error upon the said statute of 31 E. 3. lay upon such proceedings which at the time of the making of the said statute was not in force : for tryal of an issue in the Exchequer by record, was enacted by the statute of 33 H. 8. and the statute of 31 E. 3. extended to give a writ of error upon such judgments which were given by verdict, confession, or demurrer, and not upon tryal by records, which was given but of late times. But to this objection it was answered by the Lord Chancellor, and the other Judges, that long time before the said stat. of 33 H. 8, issues joyned in the Exchequer have been tryed by the records ; and he, when he was the Queens Solicitor, had seen divers presidents to that intent in the time of Hen 6.

Citations:

[1687] EngR 837, (1687) 4 Leo 104, (1687) 74 ER 759 (B)

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.395889

In re Salmon: Priest v Uppleby: 1889

A third party allegedly providing the defendant with an indemnity in respect of the plaintiff’s claim was only indirectly affected by the appeal of the plaintiff against the defendant. The third party would only be affected if the plaintiff succeeded against the defendant.

Citations:

(1889) LR 42 ChD 351

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.393385

Attorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others: 9 Jul 1690

The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King’s name is only made use of by the form of the court . . the suit is not for the King’s duty but the relator’s interest.

Citations:

[1690] EngR 71, (1690) Prec Ch 13, (1690) 24 ER 7 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.393301

Smith and others v Cardiff Corporation (No.1): CA 1954

Four plaintiffs set out to represent 13,000 tenants, and sought to challenge a proposed rent increase. The scheme they sought to challenge provided for different rents taking into consideration the financial circumstances of individual tenants. Of the tenants the rents of only 8,000 would be increased.
Held: The plaintiffs did not meet the requirements for a representative action, because the class of corporation tenant did not have a common interest or grievance and the relief sought was not in its nature beneficial to all members of the class which the plaintiffs claimed to represent. Sir Raymond Evershed MR set out the test under Order 16 r 9, ‘It must be shown . . that all the members of the alleged class have a common interest, that all have a common grievance, and that the relief is in its nature beneficial to them all.’

Judges:

Sir Raymond Evershed MR

Citations:

[1954] 1 QB 210

Jurisdiction:

England and Wales

Cited by:

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

Litigation Practice

Updated: 02 May 2022; Ref: scu.392983

Andrew v Raymond: 15 Nov 1728

In a suit for tithes an article of an allegation was offered to the Court, referring to an old terrier made 106 years before. It was objected that the terrier was not legally and duly made, that the article referring to that which could be no evidence could not be relevant.

Citations:

[1728] EngR 560, (1728) 2 Lee 571, (1728) 161 ER 444 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 02 May 2022; Ref: scu.388893

Hall and Woodhouse Ltd v Panorama Hotel Properties Ltd: 1974

Citations:

[1974] 2 Lloyd’s Rep 413

Jurisdiction:

England and Wales

Cited by:

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

Arbitration, Litigation Practice

Updated: 02 May 2022; Ref: scu.384111

Wood v Griffith: 1789

It mould be most injurious to suitors if (unless by order made on a special case shown) an appeal, even to the House of Lords, were to have the effect of staying proceedings under a decree

Citations:

[1789] EngR 2314, (1789-1817) 2 Ves Jun Supp 598, (1789) 34 ER 1245 (A)

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.367945

Lesauld v Dyer: 1794

The rule, that a term’s notice of trial after a cause has slept four terms, explained.
By the Court and all the clerks. The meaning of the rule, that ‘after a cause has slept four terms after issue joined, there must be a term’s notice of trial’ is, that there shall be some actual proceeding within the four terms ; for a proceeding actually out of the four terms, though, by acceptation of law, it may be within the four terms, is not enough : as if a venire facias be taken out in the vacation after the fourth term, tested, aa it must be, in term, so that in consideration of law it is of that term; yet because in fact it was after, it is no such proceeding as to bring the party out of the necessity of giving a term’s notice.

Citations:

[1794] EngR 1005, (1794) 6 Mod 57, (1794) 87 ER 818 (B)

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.369937

Bragner v Joseph Langmead: 15 Nov 1796

A judgment signed in any part of the term or the subsequent vacation relates back to the first day of the term, notwithstanding the death of the defendant before judgment actually signed ; and an execution against the goods of the defendant may be taken out upon it, tested the first day of the term.

Citations:

[1796] EngR 2497, (1796) 7 TR 20, (1796) 101 ER 834

Links:

Commonlii

Litigation Practice

Updated: 02 May 2022; Ref: scu.352202

Infields Ltd v P Rosen and Son: CA 1938

Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: ‘In my judgment, the same principle applies here. All that the deponent was doing was saying: ‘Well, I am asking the court to allow service out of the jurisdiction. I am being frank with the court. I have received certain information from Japan and I believe it provides no defence to the defendants.’ In other words, he was not relying on the contents of the document: he was relying on the effect of the document. He had to refer to the Japanese lawyers because he was under a duty to give the source of his information and he could only do so by referring to what they had told him.’
Lloyd LJ distinguished between reference alone to a document and a quotation of its content: ‘In some cases it will be hard to draw the line between disclosure of contents and the mere effect of advice’

Judges:

Sir Wilfred Greene MR, Lloyd LJ

Citations:

[1938] 3 All E R 591

Cited by:

Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.344014

Red River (UK) Ltd and Another v Sheikh and Another: CA 28 Apr 2009

The parties had compromised their litigation reaching a settlement, but had not adequately informed the court. The one remaining issue had been conceded.
Held: The appeal against the costs award failed. The court should have been forewarned of the settlement so as to minimise wasted time and expense.

Judges:

Sir Anthony Clarke Master of the Rolls, Lady Justice Arden and Lord Justice Lloyd

Citations:

Times 06-May-2009

Jurisdiction:

England and Wales

Citing:

See Also – Red River UK Ltd and Another v Sheikh and Another ChD 15-Nov-2007
Applications for an order requiring actions to give effect to earlier judgments . .
See Also – Red River UK Ltd and Another v Sheikh and Another ChD 25-Apr-2008
. .
See Also – Red River and Another v Sheikh and Another ChD 21-May-2008
. .
See Also – Red River UK Ltd v Sheikh and Another CA 15-Dec-2008
. .
See Also – Red River (UK) Ltd and Another v Sheikh and Another ChD 9-Mar-2009
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 02 May 2022; Ref: scu.342997