A Plaintiff moving, as of course, to amend his bill after he has taken exceptions to the answer, waives his exceptions ; he must move specially for liberty to amend, without prejudice to the exception.
[1819] EngR 635, (1819) 4 Madd 396, (1819) 56 ER 751 (B)
Updated: 02 May 2022; Ref: scu.331838
[1816] EngR 865, (1816) 2 Mer 71, (1816) 35 ER 867 (B)
See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.334558
Where a sheriff claimed as of right, upon a warrant issued by him in the execution of his oflice, a larger fee than he was entitled to by law, and the attorney paid it in ignorance of the law : Held that the latter might maintain money had and received for the excess paid above the legal fee, or might set off the same in an action by the sheriff against him. Held, also, that the sheriff was not entitied to more than a fee of fourpence upon every warrant issued by him.
[1819] EngR 402, (1819) 2 B and A 562, (1819) 106 ER 471
Updated: 02 May 2022; Ref: scu.331605
A. the owner of a stage coach from Bristol to London, sold to B. the profits of it for a part of the road, B. agreeing to supply the coach with horses for that part of the road, and A. for the remainder. B.’s. horses having been taken in execution and advertised for sale, A. provided his own horses to convey the coach along that part of the road comprised in B.’s agreement : and the Court refused a motion for an injunction to restrain him from so doing.
[1818] EngR 611, (1818) 1 Wils Ch 472, (1818) 37 ER 202 (A)
Updated: 02 May 2022; Ref: scu.332611
[1816] EngR 870, (1816) 3 Price 288, (1816) 146 ER 264
Updated: 02 May 2022; Ref: scu.334563
An agreement between the seller and purchaser of an estate, that the purchaser, bearing the expence of certain suits commenced by the seller against an occupier for arrears of rent, should have the rent to be so recovered, and any sum that could be recovered for dilapidations, and that the purchaser, bearing the expences, might use the seller’s name in actions he might think fit to commence against the occupier for arrears of rent or dilapidations, is not void, as savouring of champerty.
. . from the Court of King’s Bench. The declaration stated that, whereas on the 14th day of December, in the year 1823, at Chepstow, in the county of Monmouth, by a certain agreement then and there made between the said Edmund Williams, the Defendant, of the one part, and the said Thomas Protheroe, the Plaintiff, of the other part, the date whereof was the day and year aforesaid, the said Edmund for himself, his heirs, executors, and administrators, in consideration of the sum of 1300 l. to be paid to him or them, on the 2d day of February then next ensuing the date thereof, by the said Thomas, did thereby agree with the said Thomas, his heirs and assigns, to sell and convey to him the said Thomas, his heirs and assigns for ever, on the said 2d day of February then next, a certain freehold messuage or dwelling-house, and certain customary messuages, lauds, andc. in the said agreement particularly mentioned and described, and the said Thomas, for himself, his heirs, executors, and administrators, did thereby agree with the said Edmund, his heirs, executors, and administrators, to purchase the said freehold and customary messuages, lands, and hereditaments thereinbefore mentioned and described, and to pay the said Edmund, his executors and administrators, for the same, the sum, of 1300 l. on the said 2d day of February then next, an having the same conveyed and surrendered to him the said Thomas, his heirs and assign*, by the said Edmund or his heirs,-and it was further agreed that the [310] said Thomas should bear all the expence, costs, and charges of the conveyiance and surrender to him of the said freehold and customary hereditaments and premises, and of any fines, recoveries, or other assurances necessary to convey and surrender the same respectively, and it was further agreed by and between the said parties thereto, that the said Edmund, his heirs, executors, and administrators, should receive the rents and pay all outgoings, in respect of the said freehold hereditaments, up to the said 2d day of February then next; and, after reciting that proceedings, both at law and in equity, were then pending between the said Edmund and Sir Henry Protheroe, in which proceedings at law the said Edmund was Plaintiff, and sought to recover from the said Sir H. Protheroe six years’ rent, at 801. per annum, due the 2d day of February then last, for and in respect of the said customary hereditaments and premises, under and by virtue of a certain agreement made between the said Edmund and the said Sir H. Protheroe, it was by the said agreement, further agreed and declared by and between the said parties thereto, that the said Thomas, his heirs, executors, and administrators, should have and receive the said arrears of rent so claimed to be due from the said Sir H. Protheroe, for his and their own use and benefit, and also the said rent due from the said Sir H. Protheroe, or to become due for the current year, ending on the 2d day of February then next; and, also, that the said Thomas, his heirs, executors, and administrators, should have and be entitled to all sums of money that could be recovered from the said Sir H. Protheroe, for and in respect of dilapidations and wants of repair of and in the said customary hereditaments and premises; and it was thereby further agreed, that the said Thomas, his heirs, executors, and administrators, should be at full liberty to use the name or names o/ the said Edmund, his heirs, executors, and administrators, in the proceedings at law and in equity then pending between the said Edmund and the said Sir H. Protheroe ; and, also, in any other action or actions, suit or suits, which he, the said Thomas, his heirs, executors, and administrators, should think proper to commence and prosecute against the said Sir H. Protheroe for the recovery of the said arrears of rent, or of the current year’s rent, or for dilapidations, or wants of repair of and in the said customary hereditaments and premises; and it was thereby further agreed, that the said Thomas should bear, pay, and discharge the costs of the said Edmund in the proceedings then pending, and indemnify him, the said Edmund, his heirs, executors, and administrators, of, from, and against all costs and charges of any future proceedings that might be had by the said Thomas, in the name of the said Edmund, his heirs, executors, and administrators, against the said Sir H. Protheroe ; as by the said agreement, reference being thereunto had, fully appears; and the said agreement being made as aforesaid, afterwards, to wit, on, andc., at, andc., it was, at the special instance and request of the said Edmund, agreed by and between the said Thomas and the said Edmund, that the price or money to be paid by the said Thomas to the said Edmund for the said freehold estate and tenement in the said articles of agreement first mentioned, should be a certain sum of money, to wit, the sum of 800 l, part of the said sum of 1300 l, and that the price or sum to be paid by the said Thomas to the said Edmund, for the said customary tenements and premises in the and agreement also mentioned, should be the residue of the said sum of 1300 l, to wit, the sum of 800 l, subject to the terms in the said agreement specified; and thereupon, afterwards, to wit, on, andc., at, andc., in consideration thereof, and that the and Thomas, at the like special instance and request of the said Edmund, had then and there undertaken and faithfully promised the said Edmund, to perform and fulfil all things in the said agreement contained, on his, the said Thomas’s, part to be performed and fulfilled as such purchaser as aforesaid, he, the said Edmund, undertook, and then and there faithfully promised the said Thomas, to perform and fulfil all things in the said agreement contained, on his, the said Edmund’s, part and behalf to be performed and fulfilled as such vendor as aforesaid; and although the and Edmund, in part performance of the said agreement, and of his said promise and undertaking, did afterwards, to wit, on, andc., at, andc., sell and convey the said freehold tenements and premises in the said agreement first mentioned to the said Thomas, and his heirs and assigns, at and for the said sum of 500 l., and the said Thomas then and there paid the sum of 500 l. to the said Edmund, upon the terms aforesaid; and although the said Thomas was afterwards, to wit, on, andc., and from thence hitherto leady and willing to accept, receive, and take of and from the said Edmund, a surrender to him, the said Thomas, of the said customary tenements and premises in the said agreement mentioned, at and for the said sum of 800 l., upon the terms aforesaid, and to bear all the expences, costs, and charges of such surrender, and all necessary assurances in that behalf, and to pay the said sum of 800 l., and complete the said purchase on his part and behalf in all respects upon the terms aforesaid, to wit, at, andc.; and although the and Thomas afterwards, to wit, on, andc., and often times afterwards, offered to the said Edmund to complete the said purchase of the said customary tenements and premises, with the appurtenances, upon the terms aforesaid, and requested the said Edmund to sell and surrender to him, the said Thomas, the said customary tenements and premises, upon the terms aforesaid, to wit, at, andc., yet the said Edmund, not regarding the said agreement, nor his said promise and undertaking, but contriving, andc., did not, nor would, on the said 2d day of February in the year last aforesaid, or at any other time, surrender or convey to the said Thomas the said customary tenements and premises in the said agreement in that behalf mentioned, or any part thereof, upon the terms aforesaid, but the said Edmund wrongfully neglected and refused ever to surrender the said customary tenements and premises to the said Thomas, according to the said agreement, and wrongfully discharged the said Thomas from any further performance by him of the said agreement on his part, contrary to the agreement, and the said promise and undertaking of the said Edmund, to wit, at, andc.
Then followed a statement of special damage.
There were several other counts. A general verdict was given for the Plaintiff below, upon which final judgment was entered up, without opposition in the court below.
Curwood for the Plaintiff in error. The first count discloses an illegal agreement, and the verdict and damages being general, the judgment below cannot stand. Holt v. Scholefield (6 T.R. 691).
The agreement presents a clear case of champerty. The statute of 3 Ed. 1, c. 25, against champerty enacts, that ‘No officer of the king by himself, nor by other, shall maintain pleas, suit, or matters depending in the king’s courts, for lands, tenements, or other things for to have part thereof, or other profit, by covenant made; and he that so doth shall be punished at the king’s pleasure.’
The subsequent statute of 28 Ed. 3, c. 11, is as follows: ‘And further, because the king hath heretofore ordained by statute that none of his officers shall take any plea or champerty, and by that statute other than officers were not bounden before this time, the king willeth that no officer nor any other, for to have part of the thing in plea, shall take upon him any businesses that are in suit; nor none upon any such covenant shall give up his right to another: and if any so do, and he be attainted thereof, the taker shall forfeit unto the king so much of his lands or goods as doth amount to the value of the part that he hath purchased by such undertaking: and for such attainder whosoever will shall be received to sue for the king before the justices, before whom the plea shall have been; and the judgment shall be given by them. But it is not to be understood hereby that one may not have counsel of pleaders or of learned men (for his fee), or of his relations or neighbours,’
Although the first of these statutes applies in terms to the king’s officers only, yet it is extended by the second : both shew the sense of the legislature with regard to the offences of maintenance and champerty, and have never in application been considered as limited to the king’s officers.
Then, champerty is an offence punishable at common law, and an agreement which stipulates for the commission of an offence cannot be supported.
In Chesman v, Nainby (2 Ld. Raym. 1459) it was expressly holden, that ‘if a bond is given with condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond will be void.’ Norton Simms (Hob. 14). 1 Wms. Saund. 66 a. n. (1). Here the stipulation that the Plaintiff below shall purchase the suit commenced by the Defendant below goes to the whole agreement, and renders it void.
The Court stopped the counsel for the Defendant in error, and holding that there was no champerty in an agreement to enable the bona fide purchaser of an estate to recover for rent due, or injuries done to it previously to the purchase, more especially where such purchaser was not an officer of the king, the judgment of the court below was Affirmed.
[1829] EngR 318, (1829) 5 Bing 309, (1829) 130 ER 1080
See Also – Williams v Protheroe 1829
. .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.322186
A return to a writ of false judgment that the Plaintiff in error has not given security for prosecuting his suit, is ill.
[1839] EngR 616, (1838) 5 Bing NC 410, (1839) 132 ER 1157
Updated: 02 May 2022; Ref: scu.311148
After the Defendants had answered the bill, one of the Plaintiffs died; upon which a bill of revivor was filed, praying that the Defendants might answer it. The defendants, in their answer, admitted the right to revive, and stated that, since answering the original bill, they had become bankrupt, and obtained their certificates. Held, that those statements were not impertinent.
[1839] EngR 1140, (1839) 10 Sim 345, (1839) 59 ER 647
Updated: 02 May 2022; Ref: scu.311672
When a cause made a remanet has been tried, a verdict found for the plaintiff, and judgment signed by him, it is too late to object that the jury process was altered before the trial, without proper authority. Though the defendant swears that he did not discover the supposed irregularity till the taxation of costs.
[1840] EngR 376, (1840) 8 Ad and E 945, (1840) 112 ER 1099
Updated: 02 May 2022; Ref: scu.309802
Where a revising barrister having assented to the substance of a special case agreed upon between the parties thereto, but died without having finally settled the terms in which the statement should be made, the court refused to allow the case to be entered. Whether, supposing the assent of the revising barrister to have been given to the special case in its terms, the court would allow the case to be entered without his signature after his death, quaere.
[1844] EngR 988 (A), (1844) 7 Man and G 35
Updated: 02 May 2022; Ref: scu.305580
The want of a date in the jurat of an affidavit, is not cured by a reference to it in another affidavit as ‘an affidavit of A B sworn on such a day.’ — Semble, that this court will not give costs where a rule is discharged solely on the ground that the aaffidavit on which it is founded has a defective jurat.
[1849] EngR 1084, (1849) 8 CB 617, (1849) 137 ER 649
Updated: 02 May 2022; Ref: scu.299389
Exceptions for insufficiency will be overruled, if they vary, in a material particular, from the form of the interrogatory, as where the interrogatory is in the present tense and the exception is in the past.
An interrogatory asked whether certain sums had not come to the Defendant’s hands, and whether he had not applied ‘the same.’ The Defendant denied that any sums had come to his hands, but did not answer the remainder. Held, that the answer was sufficient.
An interrogatory asked whether the Defendant had not had communication with A. B and C. D. and other persons. The answer admitted communications with A B but denied any with any other persons, omitting the name of C. D. Held, that being specially interrogated as to C. D., the general answer was insufficient.
[1849] EngR 1197, (1849) 12 Beav 279, (1849) 50 ER 1068
Updated: 02 May 2022; Ref: scu.299502
A defendant arrested on capias upon a Judge’s order, under stat. 1 and 2 Vict c, 110, s. 3, is supersedeable unless the plaintiff proceed to execution within two terms inciusive after judgment, conformably to R Hil. 2 W. 4, I. 85. And, where judgment in debt was signed for want of a plea: Held, that the time ran from such signing, although the costs were not taxed.
[1844] EngR 982, (1844) 6 QB 544, (1844) 115 ER 204
Updated: 02 May 2022; Ref: scu.305574
A Defendant who had appeared by a solicitor in the original suit, but not in the supplemental suit, being in contempt, went to reside abroad. The Court ordered that service on the solicitor of the proceedings in the supplemental suit should be good service.
[1851] EngR 293 (B), (1851) 13 Beav 240
Updated: 02 May 2022; Ref: scu.296609
The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it.
[1851] EngR 878, (1851) 7 Exch 67, (1851) 155 ER 859
See Also – Bluck v Gompertz 7-Jun-1852
The defendant had signed an undertaking to procure the acceptance of two bills for andpound;200 and andpound;146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for andpound;150. The plaintiff . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.297194
A party to a cause, filing or giving notice to read an affidavit before the evidence is closed, may be cross-examined upon such affidavit at once, without waiting until the evidence is closed.
A party having filed or given notice to read an affidavit is not at liberty to withdraw it.
[1855] EngR 778, (1855) 2 K and J 28, (1855) 69 ER 680
Updated: 02 May 2022; Ref: scu.292700
O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books
Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff’s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued.
[1855] EngR 839, (1855) 11 Exch 446, (1855) 156 ER 906
Common Law Procedure Act 1852 226
Updated: 02 May 2022; Ref: scu.292761
On the death of an usher of the Court in 1702, a large sum, for which as usher he was accountable was due from him : in a suit instituted for the administration of his estate, more than sufficient was realized to liquidate the amount, and all sums actually claimed were paid : in 1719 the Court ordered a fund sufficient to answer the unclaimed sums to be invested, and directed the interest to be paid to the representative of the deceased usher until further order : similar orders for payment of the interest were from time to time down to 1833 made on the application of the existing representative of the usher; and in 1854, a petition was presented for the same purpose by the then representative. On a full discussion of the case, and on the petition being amended, an order was made for the transfer to him of the principal fund.
Whether there can be an appeal to the House of Lords upon a matter relating to the Suitors’ Fund, Quaere, by the Lord Chancellor.
[1855] EngR 777, (1854-1855) 6 De G M and G 170, (1855) 43 ER 1196
Updated: 02 May 2022; Ref: scu.292699
A party interested being summoned to appear as witness, is not justified in refusing to be sworn before the Chief Clerk, on the ground that he will not be able to have the assistance of counsel before the Chief Clerk, and that he ought, therefore, to be examined before the Judge or the examiner.
[1857] EngR 413, (1857) 24 Beav 137, (1857) 53 ER 309
Updated: 02 May 2022; Ref: scu.290159
In a statutory construction the specific overrides the general – generalia specialibus non derogant. Sir John Romilly MR said: ‘The general rules which are applicable to particular and general enactments in statutes are very clear, the only difficulty is in their application. The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.’
Sir John Romilly MR
[1859] EngR 249, (1859) 26 Beav 606, (1859) 53 ER 1032
England and Wales
Applied – Cusack v London Borough of Harrow CA 7-Dec-2011
The claimant sought compensation after the Borough ordered fencing to be erected along the roadside so as to obstruct vehicular access to and from his premises. If the action was taken under section 66(2) and not section 80, then Lewison LJ said . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.287601
Lord Campbell LC
[1860] EngR 1096, (1860) 2 De G F and J 333, (1860) 45 ER 649
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.285935
A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties.
(1871) QB 203
England and Wales
Cited – Tombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9) CA 17-Dec-2008
The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.279790
Suit against the Guardians of a Minor, to recover moneys alleged to be due from the estate of the Minor’s Father. The Guardians compromised the suit and the Deed of Compromise were confirmed by the Court. After sixteen years, the Minor, being then of age, brought a suit against the Guardians to recover the mount paid under the Deed of compromise, alleging that the former suit was a, fictitious one, and the compromise fraudulent and collusive between the Plaintiff and his Guardians. On appcal, held, by the Judicial Committee, reversing the judgments of the Courts in India, (1) that, in the circumstances, the Guardians, in their discretion, were justified in making the compromise to protect the Infant’s estate, and (2) that the burthen of proving the allegation that the former suit was fictitious and collusive, was upon the Plaintiff, and in the absence of any such evidence by him that no debt was due from the Father’s estate, the onus probandii was not shifted on the Defandants to negative, such allegations.
[1871] EngR 58, (1871) 14 Moo Ind App 393, (1871) 20 ER 833
Updated: 02 May 2022; Ref: scu.280239
Sir George Jessel MR observed obiter that even parol evidence was admissible in rebuttal of a legal presumption.
(1876) 5 Ch D 163
England and Wales
Cited – Frear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.278403
Where a Notice of Motion was correctly addressed and was received in time in the Central Office, but then subsequently out of time in the Crown Office, it would be treated as having been constructively entered in the time in the Crown Office.
(1993) COD 393
England and Wales
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting Admn 18-Jul-1997
The applicant complained of having been struck off the register of nurses. He said that when he told the court that he wanted to appeal he was sent forms appropriate for a judicial review. He amended and submitted them. In correcting him, the court . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.277518
Lindley LJ described the basis of rules allowing a case to be struck out for being ‘scandalous, frivolous or vexatious’, ‘It appears to me that the object of the rule [Order XXV, rule 4] is to stop cases which ought not to be launched -cases which are obviously frivolous or vexatious, or obviously unsustainable . .’
Lindley LJ
[1892] 3 Ch 274
England and Wales
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.277521
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action shoud fail since the contract was tainted with the fraud.
Held: The defence failed. The misrepresentation was not part of the contract itself, and was therefore not affected by the plea of ex turpi causa non oritur actio. The purchasers’ dishonest apportionment of the price was wholly unconnected with their cause of action and that their moral culpability in that regard was greatly outweighed by that of the vendor in making the fraudulent representation.
Bingham LJ said: ‘Where issues of illegality are raised, the courts have . . to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.’ and ‘the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa he is likely to fail . . . Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed.’
Kerr LJ:- ‘However, the present action, unlike Alexander -v- Rayson, is not brought on the contract, but on the tort of deceit based on the defendant’s fraudulent misrepresentation. I therefore do not propose to consider what would have been the position if, for instance, the defendant had declined to complete in this case and the plaintiffs had sought to sue on the contract, either for specific performance or for damages.’ but ‘But the full picture is more complex, as shown by two more recent cases to which we were also referred. I will not analyse them in detail, but they show that there are no rigid rules for or against the application of the ex turpi causa defence. This is not surprising, since it involves issues of public policy. To some extent these must depend on the circumstances of each case.’ and
‘. . . the conduct and relative moral culpability of the parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied as a matter of public policy.’
Bingham LJ, Kerr LJ, Nicholls LJ
[1987] 1 WLR 1116, [1987] 2 All ER 651, [1986] Ch 638, [1986] EWCA Civ 4
England and Wales
Cited – Sweetman v Nathan and others CA 25-Jul-2003
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . .
Cited – Pitts v The Personal Representatives of Mark James Hunt (Deceased) and Another CA 1990
The plaintiff and a friend had spent the evening drinking at a disco before setting off on the friend’s motorcycle. The plaintiff was aware that the motorcyclist was neither licensed to ride a motorcycle nor insured. During the journey, the . .
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.186011
A company which re-took possession of a car, which they had sold in exchange for a dishonoured cheque, had taken possession under a disposition. The meaning of disposition was dealt with differently by the three members of the Court of Appeal. Lord Denning said that the word ‘disposition’ was a very wide word and cited what Stirling J. had said in Carter v Carter [1896] 1 Ch 62 at 67, that a disposition extends ‘to all acts by which a new interest (legal or equitable) in the property is effectively created ‘. Phillimore LJ said that ‘to constitute a disposition the dealing with the goods must go beyond the mere transfer or delivery of them: there must be some disposal which involved transfer of property’. Megaw LJ said ‘ ‘Disposition’ must involve some transfer of an interest in property, in the technical sense of the word ‘property’ as contrasted with mere possession.’
The Court of Appeal and the High Court was not bound to follow decisions of the court which the Privy Council had held to be wrongly decided. Lord Denning MR said: ‘although decisions of the Privy Council are not binding on this court, nevertheless when the Privy Council disapprove of a previous decision of this court, or cast doubt on it, then we are at liberty to depart from the previous decision. I am glad to depart from those earlier cases and to follow the Privy Council.’
Lord Denning MR, Phillimore LJ, Megaw LJ
[1972] 1 QB 210, [1971] 3 ALL ER 708
Updated: 01 May 2022; Ref: scu.277066
Davies LJ considered the approach to be taken when hearing an application for permission to bring proceedings by a person subject to a Grepe v Loam order restraining him in that regard. Davies LJ said: ‘In my view, the jurisdiction which is given by that section to a judge in chambers to give leave for the institution or continuance or proceedings by a vexatious litigant is a jurisdiction which should be very carefully and sparingly exercised. Ex hypothesi the litigant has already ‘habitually and persistently and without any reasonable ground instituted vexatious legal proceedings’; and I think that there is a high onus cast on such a litigant when he or she applies to the judge for the leave mentioned in the section.’
Davies LJ
[1971] 1 WLR 1475
Updated: 01 May 2022; Ref: scu.276214
The rule in Norwich Pharmacal does not provide a general right of discovery. Hoffman J cited Lord Reid in Norwich Pharmacal and said: ‘The reference to ‘full information’ has sometimes led to an assumption that any person who has become mixed up in a tortious act can be required not merely to disclose the identity of the wrongdoer but to give general discovery and answer questions on all matters relevant to the course of action. In my view this is wrong. The principle upon which Lord Reid distinguished the ‘mere witness’ rule was that unless the plaintiff discovered the identity of the wrongdoer, he could not commence proceedings. The reasoning of the other members of the House is the same. The Norwich Pharmacal case is no authority for imposing upon ‘mixed up’ third parties a genera) obligation to give discovery or information when the identity of the defendant is already known.’
Hoffman J
[1992] 2 All ER 911
England and Wales
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Approved – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.272822
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, creating: ‘the possibility, and indeed the likelihood, of a profit being made, [by a third party with no genuine commercial interest in the transaction] out of the cause of action . . [which] manifestly ‘savours of champerty’, since it involves trafficking in litigation – a type of transaction which, under English law, is contrary to public policy.’ Such activity is unacceptable to the court which sees its role as the administration of justice and not the provision of a market for speculators in litigation.
A bare cause of action may be assigned if the assignee has a genuine commercial interest in it. Although the purported assignment of a cause of action to a third party with no genuine and substantial interest in the success of the litigation was void for champerty, if the potential assignee had such an interest, the assignment of the bare right action would not offend the law against maintenance and champerty. The concept of an unassignable bare right of action was confined by holding that a chose of action was assignable if the assignee had a general commercial interest in it, even if it were not incidental or subsidiary to a right of property.
Lord Roskill (with the concurrence of the other Law Lords) said: ‘It is clear, when one looks at the cases upon maintenance in this century and indeed toward the end of the last, that the courts have adopted an infinitely more liberal attitude towards the supporting of litigation by a third party than had previously been the case.’
and ‘in English law an assignee who can show that he has a genuine commercial interest in enforcement of the claim of another and to that extent takes a assignment of that claim to himself is entitled to enforce the assignment unless by the terms of the assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance . . The court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that property right or interest, or, if the assignee has a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance.’
Lord Roskill, Lord Wilberforce
[1982] AC 679, [1981] 3 WLR 766, [1981] 3 All ER 520
England and Wales
Appeal from – 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 – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Carlisle and Cumbria United Independent Supporters’ Society Ltd v CUFC Holdings Ltd and Others CA 5-May-2010
The claimant supporters’ club had brought an action to prevent a substantial shareholder in the first defendant company from selling off land owned by the club for no consideration. The parties had reached a settlement after a protracted claim . .
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.272901
In a civil action against army personnel, the defendant ministry applied that military witnesses should be screened while giving evidence so as to protect their identities. They were also to be identified by letters, not names, but the claimant raised no objection to that.
Held: The evidence to be given by these military witnesses would be ‘directly detrimental to the plaintiff’s case’, and the claimant must not lose the advantage of being able to cross examine them face to face.
Sir Brian Hutton CJ said: ‘I think it appropriate to observe that, in my opinion, counsel for the Ministry in his submissions accorded insufficient recognition to the importance of counsel being able to cross-examine, face to face, an important witness giving evidence on a vital issue in dispute between the parties. Where issues are in dispute between the parties unimpeded cross-examination plays a vital part in the trial and gives vital assistance to the due administration of justice. I consider that counsel would be impeded in the cross-examination of a witness, whose evidence he wished to challenge, if he could not see his face fully, and I find it difficult to envisage circumstances in which the interests of justice would require that the face of a vital witness giving evidence on an important matter in dispute should be screened from counsel cross-examining him.’
Higgins J said: ‘Mr Kerr in his submission on behalf of the Ministry of Defence questioned the importance of a lawyer appearing in a trial being able to see the witnesses for the opposing side give evidence, even when their evidence is crucial and disputed. I think that in a contested case it is essential that the lawyer for one party should be able to see the demeanour of each witness, called by the other side to give evidence of any importance; to prevent him from viewing such a witness would be a hindrance to his cross-examination.
The exposure of witnesses, even when giving uncontroversial evidence, to the view of the lawyers in the case has been the invariable practice in the common law system of administering justice. It has been one of the features which has contributed to the maintenance of public confidence in the administration of justice. To depart from it in any circumstance, unless there has been consent, would, I consider, diminish public confidence.
The Ministry is seeking to have four witnesses at the trial of this case screened from the sight of all but the trial judge. Those witnesses would be giving evidence in support of the defence of reasonable force, which is likely to be challenged strongly. It is my opinion that to permit, for no matter how compelling a reason, any of those witnesses to be cut off, while in the witness-box, from the view of the plaintiff’s lawyers, would be an unacceptable departure from the fundamental principles which govern the conduct of trials throughout the United Kingdom.’
Sir Brian Hutton CJ, Higgins J
Unreported, 5 February 1991
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.270018
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth.’
[1720] 24 ER 238, (1720) Prec Ch 531, [1720] EngR 10
England and Wales
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.270014
A court should not grant leave to amend a pleading into a form which is liable to be struck out. The more serious the allegation that is made, the more clearly satisfied must the Court be that no prejudice will be caused that cannot be compensated for in some satisfactory way, before allowing a proposed amendment.
Parker LJ said: ‘A defendant is entitled to rely in mitigation of damages on any evidence which is properly before the jury and this can include evidence in support of an unsuccessful plea of justification: see the judgment of Neill LJ in Pamplin v Express Newspapers Limited’
Parker LJ
[1987] 1 All ER 483, Gazette 25-Mar-1987, [1987] 1 WLR 201
Cited – Associated Leisure (Phonographic Equipment Co) Ltd v Associated Newspapers Ltd CA 1970
The defendant sought to be allowed to amend its pleadings to add justification. They now appealed against refusal.
Held: The amendment was allowed. However, in general, in a libel action, if the defendant seeks at a late stage to amend his . .
Cited – Pamplin v Express Newspapers Ltd (2) CA 1988
In considering what evidence can be used in mitigation of damages in defamation, it is necessary to draw a distinction between evidence which is put forward to show that the plaintiff is a man of bad reputation and evidence which is already before . .
Cited – McDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.267708
A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded.
[1993] 1 All ER 400
England and Wales
Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.268053
Viscount Simonds said: ‘For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.’ However the guiding principles of interpretation and exposition of statutes are stated in so many ways that ‘support of high authority may be found for general and apparently irreconcilable propositions’.
Viscount Simonds
[1957] AC 436
Cited – Majorstake Ltd v Curtis HL 6-Feb-2008
The tenant had served a notice under the 2003 Act to acquire a new lease. The landlord in replying that he wished to redevelop the site, sought himself to define the extent of the ‘estate’ to include only the tenant’s apartment and a neighbouring . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.266088
It is open to a claimant to withdraw part of his claim without notice to the other side in order to take advantage of the administrative procedures provided by Order 19 rule 2 or, for that matter, Order 19 rule 3. But the judgment taken in such circumstances must make it clear on its face that the inappropriate claims have been abandoned.
(1973) 117 SJ 876
Cited – Osborne v Leighton CA 30-Apr-1999
The defendant being late in filing a defence to the claim for defamation, the claimant entered judgment in default. The defendant sought to have that set aside, and now sought her (substantial) costs.
Held: The entry of judgment had been at . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.262982
A liquidator’s cross-undertaking in damages may be limited to the net proceeds of the liquidation where he has no significant assets under his control apart from the unsatisfied judgment debt.
Millett J
[1989] 1 WLR 778
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.260076
A landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters.
[1975] 1 WLR 155
Cited – Crancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
Cited – Pritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259695
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act on the one hand and rules of court providing for the appointment of a next friend or guardian ad litem for a person under disability on the other.
Held: Persons under disability under the rules of court, may include some incapable of managing and administering their property and affairs who were not ‘patients’ for the purposes of the Mental Health Act. The rules of court did not contain or impose the requirement of judicial satisfaction after the consideration of medical evidence. There is no reason why the test of mental capacity, when applied to the power to pursue or defend legal proceedings, should necessarily lead to the same conclusion as it will when applied in order to determine whether the same person is or is not a patient within the Mental Health Act.
Ungoed Thomas J
[1973] 1 WLR 178
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259624
In relation to certiorari, the applicant must be a person aggrieved; or having a particular grievance in order to have standing to make the application.
(1951) 55 Knight’s LGR 129
Updated: 01 May 2022; Ref: scu.258761
The plaintiff shipowners claimed damages for detention following a collision with the defendants’ ship. There was an issue as to how long the ship repairs would have taken if they had been done at Bremen. The defendants adduced evidence on this point in the form of an exchange of letters.
Held: In considering what weight to give to the letters under section 6(3) of the Civil Evidence Act 1968, the court identified relevant circumstances, and said also that it was necessary to take account of the fact that the evidence was unsworn and could not be tested by cross-examination. This was particularly important where the evidence related to hypothetical rather than actual facts.
Brandon J said: ‘My view is quite simply that matters of this importance, in a case of this kind, should be proved by oral evidence, and that letters obtained at the time and in the way that these were obtained should have little weight attached to them. I cannot think that the Civil Evidence Act 1968, was intended, in general, to change the long established system by which seriously disputed central issues in civil cases are tried on oral evidence, given on oath and capable of being tested by cross-examination, and to substitute for it a system of trial on unsworn documents brought into existence by parties to the proceeding post litem mortam, and I do not think the Act should be used, or rather abused, so as to produce such a result.’
Brandon J
[1972] 2 Lloyd’s Rep 120
Cited – Welsh v Stokes and Another CA 27-Jul-2007
The claimant sued a riding stables after she was badly injured on being thrown from the horse provided. Her claim in negligence failed, but she succeeded under strict liabiilty under the 1971 Act, after the judge relied upon hearsay evidence.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.258435
The trading standards officer of the relevant authority and who wished to bring the complaint had been unsure as to the identity of the offender, because he was dealing with a corporate defendant and a number of possible candidates as the proposed defendant. McNeil J considered what was meant by ‘discovery’ in connection with time limits: ‘I think it is sufficient for the purposes of this case, to say that the word ‘discovery’ means no more in this context than all the faxed material to found the relevant charge under the Act were disclosed to the appropriate officer. The word ‘discovery’ here does not import any investigation by the officer. It is simply his knowledge from disclosure to him in some way, of the material facts which would found the offence.’
McNeil J
[1981] TRL 126 DC, (1982) 90 ITSA MR 112
Adopted – Tesco Stores Ltd v London Borough of Harrow Admn 21-Nov-2003
The court considered at what point the knowledge of the prosecuting authorities became sufficient to begin time running on a prosecution: ‘The question to ask in these circumstances is whether the facts disclosed, objectively considered, would have . .
Cited – Donnachie, Regina (on the Application of) v Cardiff Magistrates’ Court Admn 27-Jul-2007
The defendant appealed refusal of the district judge to state a case on the basis of having no jurisdiction.
Held: Where the magistrate is acting not as an Examining Magistrate, but is deciding a preliminary issue as to jurisdiction, his . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.258447
The parties have the right to ask for cross-examination in the context of the Anton Piller jurisdiction. Falconer J said: ‘Some inconsistencies may well become apparent between what is said when they respondents are taken by surprise when confronted with the order and what is said on affidavit, but it would be in my view quite wrong if it became the norm for an Anton Piller Order to be followed by applications for cross-examination.’ A court making such an order must be satisfied that ‘there was a reasonable likelihood that the person sought to be cross examined had information which should have been disclosed pursuant to the order for disclosure and which would lead to the fulfilment of the purpose of such an order.’
Falconer J
[I985] FSR 421
Cited – Kensington International Ltd v Republic of Congo and Another ComC 20-Jul-2006
The claimant sought leave to cross examine an officer of the defendant in connection with his affidavit sworn in search order proceedings. The case had a history of deceit and dishonest oral evidence.
Held: Though such an order would be . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.259223
An order of certiorari should be made only at the request of somebody with a sufficient interest in the mater.
[1916] 1 KB 7
Updated: 01 May 2022; Ref: scu.258765
An interlocutory injunction should be granted to restrain behaviour where the plaintiff had a realistic prospect of success, and overall justice required one to be ganted.
[1985] 2 NZLR 129
Cited – Cussons (New Zealand) Pty Limited v Unilever Plc and others PC 20-Nov-1997
(New Zealand) The defendants appealed against an interlocutory injunction restraining them from use of a trade mark which was said to be infringing. The mark had not been used and was vulnerable to being removed, and Cussons applied for the removal . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.258725
The rule in Bonnard preventing prior restraint in defamation proceedings applies also in the context of an allegation of malicious falsehood.
[1975] FSR 421
Cited – Bonnard v Perryman CA 2-Jan-1891
Although the courts possessed a jurisdiction, ‘in all but exceptional cases’, they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that that defence . .
Cited – Boehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.253523
(British Columbia) Lambert J.A said about the without prejudice rule: ‘to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion that the rule does not extend to the prevention of the production of those documents at the instance of a litigant who was not a party to the settlement and whose claim for production comes under the rule in the Peruvian Guano case.’
Lambert JA
[1985] 2 WWR 137
Applied – Schetky v Cochrane and the Union Funding Co 1918
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.253698
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier’s agents whose diligence or lack of it is attributable to the carrier. A shipowner’s or carrier’s duty under Article III, Rule 1 would not start and he would not be responsible for work carried out until the transfer of ownership, or possession of the vessel, or until the vessel came into his ‘orbit’, service or ‘control’.
Considered decisions of foreign courts, in particular appellate decisions, should be treated as persuasive in order to strive for uniformity of interpretation of international conventions.
Lord Radcliffe said: ‘It is plain to me that this conclusion turns on the consideration that the causative carelessness took place at a time before the carrier’s obligation under article III (1) had attached and in circumstances, therefore, when the builders and their men could not be described as agents for the carrier ‘before and at the beginning of the voyage to . . make the ship seaworthy’. This is a tenable position for those who engage themselves upon the work of bringing the ship into existence. The carrier’s responsibility for the work itself does not begin until the ship comes into his orbit, and it begins then as a responsibility to make sure by careful and skilled inspection that what he is taking into his service is in fit condition for the purpose and, if there is anything lacking that is fairly discoverable, to put it right. This is recognised in the judgment. But if the bad work that has been done is ‘concealed’ and so cannot be detected by any reasonable care, then the lack of diligence to which unseaworthiness is due is not to be attributed to the carrier.’
The contemporary background of a treaty, including the legal position preceding its conclusion, can legitimately be taken into account as part of the context relevant to the interpretation of its terms.
Lord Radcliffe, Viscount Simonds
[1961] AC 807
England and Wales
Cited – Parsons Corporation and others v CV Scheepvaartonderneming ‘Happy Ranger’ ComC 9-Feb-2006
A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required. . .
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.252503
Lord Diplock said: ‘Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as me ‘may think just’ the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.’
Lord Diplock
[1980] AC 331
Cited – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.252442
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another action issues which have been fully investigated and decided in a former action may constitute an abuse of process, quite apart from any question of res judicata or issue estoppel on the ground that the parties or their privies are the same. It would be wrong to attempt to categorize the situations in which such a conclusion would be appropriate.’
. . And ‘ . . where, as here, consolidation was in fact sought by the party in question, I cannot begin to see how any question of abuse of the process of the Court could be said to arise.’
Sir David Cairns said: ‘I do not accept the proposition . . that when an issue has already been decided in proceedings between A and B it is prima facie an abuse of the process of the court for B to seek to have the issue decided afresh in proceedings between himself and C and that in such circumstances there is an onus on B to show some special reason why he should be allowed to raise the issue against C. On the contrary, I consider that it is for him who contends that the retrial of the issue is an abuse of process to show some special reason why it is so . . It would in my judgment be a most exceptional course to strike out the whole or part of a defence in a commercial action, or to refuse leave to amend a defence in such an action, simply because the issue raised or sought to be raised had been decided in another commercial action brought against the same defendant by a different plaintiff. The facts that the first action had been fairly conducted and that the issue had been the subject of lengthy evidence and argument could not, in my view, be sufficient in themselves to deprive the defendant of his normal right to raise any issue which he is not estopped from raising.
Kerr LJ, Sir David Cairns
[1982] 2 Lloyds Rep 132
England and Wales
Approved – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Kaschke v Gray and Another QBD 23-Jul-2010
The claimant sought damages in defamation saying that the defendants had published a web page which falsely associated her with a terrorist gang in the 1970s. The defendants now sought a strike out of her claim as an abuse saying that a similar . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.252495
(New Zealand Court of Appeal) If one tortfeasor settles the victim’s claim by paying him a sum which fully satisfies his right to damages for loss and injury, the victim cannot then sue any concurrent tortfeasor for damages for the same loss and injury. Thomas J said: ‘Satisfaction discharges the loss. It is in the nature of an executed judgment in its effect. The loss no longer exists. There is nothing left for anyone to sue on; the injury or loss has been satisfied. As between the parties there is no problem. Where the co-defendants are concurrent tortfeasors, however, concurrently liable on a different cause of action, the satisfaction of one obligation cannot in itself discharge the other obligation. The concurrent tortfeasor will be released only if the satisfaction satisfies the injury or loss which flows from his or her separate cause of action. Its extinction is then independent of the agreement between the plaintiff and the defendant. Simply put, no injury or loss exists on which to sue.’
Thomas J
[2000] 1 NZLR 560
Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.251634
The court considered the availability of specific performance as a remedy to a personal representative.
1864 12 WR 1021
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.251047
The plaintiff sought damages for personal injury. When his witness was cross-examined on his earlier statement, he agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on the ground of privilege. The trial judge ordered disclosure.
Held: The order was upheld. Denning LJ said: ‘It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or opposing counsel, a sight of the rest of the document, much of which might have been against him.’
Denning LJ
[1956] 1 QB 187
England and Wales
Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited – Loizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.249944
(High Court of Australia) Dixon J said: ‘Specific performance is inapplicable when the continued supervision of the Court is necessary in order to ensure the fulfilment of the contract.’
Dixon J
(1931) 45 CLR 282
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247891
The patentee had succeeded at trial in obtaining a declaration of validity and a determination of infringement, and, in subsequent proceedings, the infringer sought to challenge the validity of the patent by raising a fresh argument based on anticipation.
Held: He was not entitled to do so because the question was res judicata as between the parties.
Bowen LJ: ‘it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance of their rights…. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace…. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.’
AL Smith LJ, Bowen LJ
[1896] 1 Ch 10
Cited – Re Deeley’s Patent 1895
A revocation of a patent for which the Attorney General’s fiat has been obtained is an action taken on behalf of the public at large. . .
Cited – Clarapede and Co v Commercial Union Association 1883
Sir Baliol Brett MR: ‘however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other . .
Appeal from – Shoe Machinery Company v Cutlan (No 2) 1896
Prior litigation had been an infringement action in which the Defendants denied both validity and infringement, and succeeded on infringement but failed on validity and were ordered to pay costs of the validity issue. By the time of the second . .
Cited – Special Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247700
Prior litigation had been an infringement action in which the Defendants denied both validity and infringement, and succeeded on infringement but failed on validity and were ordered to pay costs of the validity issue. By the time of the second infringement action the Defendants said they had found new evidence of prior art.
Held: They were not allowed to challenge validity, it having been decided against them in the first proceedings. It was a matter res judicata.
Romer J
(1896) 13 RPC 141
Cited – Special Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
Appeal from – Shoe Machinery Company v Cutlan 1896
The patentee had succeeded at trial in obtaining a declaration of validity and a determination of infringement, and, in subsequent proceedings, the infringer sought to challenge the validity of the patent by raising a fresh argument based on . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247702
The court considered what was meant by a frivolous request to magistrates to state a case: ‘It meant that the matter did not brook of any substantial argument, or [whether] it was so clear that the matter should not be investigated.’
[1996] COD 276
England and Wales
Updated: 01 May 2022; Ref: scu.247419
The court set out the criteria for assessing whether an action was frivolous in law. Lush J said: ‘It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court.’
Lush J
(1916) 85 LJ KB 857
Cited – Regina v Mildenhall Magistrates’ Court, Ex Parte Forest Heath District Council; Regina v North West Suffolk (Mildenhall) Magistrates’ Court ex parte Forest Heath District Council CA 16-Apr-1997
The Magistrates appealed against an order of mandamus requiring a case to be stated after rejecting the request by the authority as frivolous. The authority had sought to prevent the emission of noise from land used for a Motocross racing track.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.247417
(1996) 28 HLR 241
England and Wales
Updated: 01 May 2022; Ref: scu.245838
A report was prepared by various analysts employed by the defendant Hospital following a post-mortem examination of a deceased child. It said that organs of the child contained various concentrations of morphine. The result was reported to the police in the form of a statement and formed the basis of a prosecution of the mother. However, at the trial no evidence was presented as it appeared the analysis was contaminated. The mother now sued the hospital and the analysts claiming negligence in, amongst other things permitting the organs to become contaminated, not appreciating the high likelihood of contamination and not retracting their reports subsequently.
Held: Common law immunity is to be given to evidence from potential witnesses in criminal proceedings at a time when proceedings are in contemplation but have not yet been commenced.
Drake J
[1981] 1 WLR 184, [1981] 1 All ER 715
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245745
A fraud was alleged by the defendant against the arms manufacturer Ferranti.
Hoffman J said: ‘The question [on an application under Ord. 12 r. 8(1)(c) to discharge an order giving leave to serve a writ out of the jurisdiction] is . . whether that order was rightly made at the time it was made. Of course the Court can receive evidence which was not before the [Court when the order was made] and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was rightly given should be discharged simply because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard.’ and
‘Mr Crystal said I should look at the position today. An application under RSC, O12, r8 is a rehearing of the application to the Master and the exercise of a fresh discretion. It should therefore take into account whatever has since happened. I do not agree. The application is under RSC, O12, r8(1)(c) to discharge the Master’s order giving leave to serve out. The question is therefore whether that order was rightly made at the time it was made. Of course the Court can receive evidence which was not before the Master and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was rightly given should be discharged simply because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard. The position is quite different when the application is for a stay on the grounds of forum non conveniens. In such a case, the appropriate time to consider the matter is the date of the hearing.’
Hoffman J
[1992] 2 Lloyd’s Rep 430
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245210
A tribunal has an inherent power (subject to constraints) to regulate the procedure to be followed before it.
[1991] 3 All ER 610, [1991] 1 WLR 697
Cited – Rhone-Poulenc Rorer International Holdings Inc and Another v Yeda Research and Development Co Ltd ChD 16-Feb-2006
The patent application had been presented to the European Patent Office and granted only after 13 years. The claimant now appealed refusal to allow amendment of its claim to allow a claim in its sole name. The defendant argued that it was out of . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245172
The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen’s College and so was not bound by any issue estoppel arising out of those proceedings.
Lord Halsbury said: ‘I think it will be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again’.
Lord Halsbury
[1889] 14 App Cas 665
England and Wales
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Levey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
Cited – Laing v Taylor Walton (A Firm) QBD 20-Feb-2007
The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.244668
AL Smith LJ: ‘The court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious yet it ought to do so when as here, it has been shown that the identical question sought to be raised has already been decided by a competent court’.
AL Smith LJ
[1898] 1 QB 677
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Levey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.244667
A party seeking to rely upon foreign law has a duty to plead it.
[1971] 1 WLR 1128
Cited – Global Multimedia International Ltd v ARA Media Services and Others ChD 21-Jul-2006
The defendant sought to resist the jurisdiction of the court, and said that employees had been in breach of duties implied into their employment contracts.
Held: A party seeking to rely upon a foreign law had a duty to specify which law was to . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.244188
Judgment had been first given, but reversed on appeal. The money had been paid following judgment. The appeal court had ordered the return of the money and the question was whether there should also be interest on the money.
Held: Lord Cairns: ‘It is contended, on the part of the Respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if this is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld.’
Lord Cairns
(1871) LR 3 PC 465
England and Wales
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.242618
Brett J said: ‘It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that, if there be a word or phrase therein to which no sensible meaning can be given, it must be eliminated.’
Brett J
[1876] 1 CPD 691
Cited – McMonagle v Westminster City Council HL 1989
The House treated words as surplusage in a statute which contained criminal sanctions in order to avoid the substantial frustration of the object of the Act. Words in an Act are not to be rendered ‘insensible, absurd or ineffective to achieve its . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.242612
Where proceedings were compromised, one could not say that the issues settled were res judicata but nonetheless it would be an abuse of process to allow the same issues to be relitigated later. If in later proceedings a party raised an issue which had been raised in earlier proceedings, it was necessary to decide what issues had been settled in the first litigation. If proceedings were stayed pursuant to a Tomlin order, all issues arising in those proceedings were stayed.
Waller LJ
Unreported, 25 May 2002
England and Wales
Cited – Carphone Warehouse UK Ltd v Cyrus Malekout CA 14-Jun-2006
The tenant had a Rent Act tenancy. The landlord failed to repair the premises, and he was unable to occupy them. The present appellant landlord took an assignment of the freehold, and sought possession for arrears of rent. The first proceedings were . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.242529
(United States) A ‘wrongful’ injunction granted at the behest of a power company had stopped the county from receiving or using Federal funds to build a rival power station. Upon reversal of the decision and dissolution of the injunction the county claimed for the profits made by the power company from the injunction and for its losses.
Held: Judge Parker: ‘The county’s principal contention is that it is entitled to have restitution of the profits which it has lost and the power company has gained as a result of the injunctive orders; but we see no basis upon which any such relief can be granted. Restitution is awarded upon the principle that a party against whom an erroneous judgment or decree has been carried into effect is entitled, upon reversal, to that which he has lost thereby [authorities cited]. It cannot be awarded here, because the county has lost nothing which the power company has received, as a result of the injunctive orders of the court. The income received by the latter was received from the sale of power which it produced and had a right to sell. It received nothing from the county and nothing to which the county would have been entitled, or which it would have received, had the injunctive orders not been entered [authorities cited] The most that can be said is that the suit and the injunctive orders issued therein damaged the county by delaying the construction of its project and that the power company’s business profited by being freed of competition as a result of the delay; but to grant recovery on this basis would be to award damages on account of the suit and injunctive orders, which as we have seen, cannot be done. The effect of the rule cannot be avoided by calling a claim for damages one for restitution.’
Parker K
(1939) 107 F(2d) 484
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.242620
The Privy Council, if it disapproves of a previous decision of the Court of Appeal, is at liberty to depart from it.
[1971] 3 All ER 706
Cited – Regina v Parker CACD 25-Feb-1997
The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.242103
The negligence of the plaintiffs’ insurance brokers led to the insurance policies being voidable for non-disclosure.
Held: The plaintiffs suffered immediate damage on entering into the policies because they did not get the protection they should have had, even though the eventual uninsured losses and the avoidance of the policies were wholly contingent at the time the insurance agreements were made and might never have eventuated.
‘But counsel for the plaintiffs emphasises that this is an application to strike out the plaintiffs’ cause of action. It is well established that one should only do so on the ground that the cause of action is time-barred if it is a clear case. He submits that the question when the plaintiffs possessed sufficient relevant knowledge is a question of fact which is not appropriate to be decided at this stage. I agree. In my view this is a matter which must be investigated at trial. Whether it is done by way of a preliminary issue is a matter which may be decided hereafter.’
Rokison QC HHJ
[1990] 1 All ER 808
England and Wales
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.241657
In a motion for summary decree, ‘The court is not concerned with forecasting the outcome of a proof.’
Lord Hamilton
1997 SLT 305
Scotland
Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.241643
Lord Shaw: ‘In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted.’
Lord Shaw of Dunfermline
[1926] AC 155, [1925] All ER 56, (1926) 42 TLR 207, 67 ER 313
Commonwealth
Appeal from – Hoysted v Federal Commissioner of Taxation 16-Dec-1921
High Court of Australia – Higgins J coined the term ‘issue estoppel’. . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.241331
Ward LJ
[1997] 1 WLR 1667
England and Wales
Cited – Keith Walker v Wolferstans (a Firm) CA 10-Mar-1999
The plaintiff sought damages against the defendants for having allowed his claim to the Criminal Injuries Compensation Board to fail by limitation. He now sought leave to appeal out of time after his claim was struck out for failure to comply with . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.239994
When considering the extent to which a court should order partial disclosure of legally privileged advice, the test is one of fairness in the conduct of the trial. It should be left to the trial judge to determine whether a party in the evidence which he deploys in court, is seeking to take an unfair advantage by his partial disclosure. Hobhouse J said: ‘if evidence is adduced then the extent of the waiver relates to the transaction to which the evidence goes . . It does not extend to all the matters relating to the subject matter of those conversations.’
Hobhouse J
[1984] 1 WLR 100, [1984] 1 All ER 35
Appeal from – General Accident Fire and Life Assurance Corporation Limited v Tanta QBD 1984
Hobhouse J gave guidance on the extent of waiver given when a document was accidentally disclosed. . .
Followed – Balkanbank v Taher and Others 19-Feb-1994
Disclosure of legal advice. . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Seaton v Regina CACD 13-Aug-2010
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said . .
Cited – Mireskandari v Associated Newspapers Ltd CA 23-Feb-2011
The claimant appealed against orders made in the course of his defamation claim. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.240158
The payment off of arrears of rent will not necessarily prevent an order for possession being made where there is a history of arrears and poor payment.
[1951] 2 KB 858, [1951] 2 All ER 716
England and Wales
Cited – Paddington Churches Housing Association Ltd v Sharif CA 27-Jan-1997
The landlord had obtained a possession order against its secure tenant. The tenant had left to go to Egypt, and had been in arrears of rent. The tenancy obliged the tenant to occupy the prperty as his main residence. The landlord re-let the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.239720
Evidence as to the results of market research surveys was not admissible as expert evidence.
Walton J
[1987] FSR 407
England and Wales
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
At First Instance – Reckitt and Coleman Properties Ltd v Borden Inc HL 1990
The plaintiffs claimed passing off of their ‘Jif Lemon’ trading style.
Held: It is no defence to an allegation of passing off that members of the public would not be misled if they were more literate, careful, perspicacious, wary or prudent. . .
Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238580
An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. The standards set for experts in civil cases apply equally in family proceedings.
Cazalet J
[1990] FCR 193
England and Wales
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Mentioned – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238569
An expert must act giving ‘independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.’
Garland J
[1987] 1 Lloyds Rep 279
England and Wales
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238568
Lord Mansfield said: ‘Neither party, witness, counsel jury or judge can be put to answer, orally or criminally, for words spoken in office.’ Where words are spoken which are opprobrious or irrelevant to the case, the court will take notice of them as contempt. If anything of mala mens is found on such an enquiry it may be punished.
Lord Mansfield CJ
(1772) Lofft 54, [1772] 98 ER 529
England and Wales
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – Hargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238564
A court may draw adverse inferences from unexplained reasons as to why witnesses who were apparently available when their evidence was crucial to a case were not called.
The Hon Mrs Justice Arden DBE The Right Honourable Lord Justice May The Right Honourable Sir Martin Nourse
[2005] EWCA Civ 1637
England and Wales
Appeal from – Lewis v Eliades , Karis, Kaissides ChD 22-Apr-2005
. .
See Also – Karis and Another v Lewis CA 21-Dec-2005
. .
Cited – Baigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.237764
Denning LJ said: ‘What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand whilst the rest of the world goes on; and that will be bad for both.’
Denning LJ
[1953] 2 All ER l27
Updated: 01 May 2022; Ref: scu.238124
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that all steps taken under it were void.
Held: The appeal failed (Lord Denning dissenting). RSC Order 70 Rule 1 gave the court no power to cure proceedings which were a nullity. The court discussed Craig -v- Kanssen: ‘part of the difficulty is that the phrase ‘ex debito justiciae’ had been taken as equivalent to a nullity, but, with all respect to Lord Greene’s judgment in Craig v Kanssen, it is not. The phrase means that the [defendant] is entitled as a matter of right to have it set aside.’
Upjohn LJ reviewed the case law and said: ‘I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to the complain of the defect ex debito justitiae. Lord Denning in MacFoy pointed out that a useful test was whether the defect could be waived.’
He went on to distinguish between defects in proceedings which could and should be rectified by the Court and those which were so fundamental that they made the whole proceedings a nullity. These included (i) proceedings which ought to have been served but which have never come to the notice of the defendant at all; (ii) proceedings which have never started at all owing to some fundamental defect in issuing them; and (iii) proceedings which appear to be duly issued but fail to comply with a statutory requirement.
Lord Denning (minority) said: ‘The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead or non-existent and I would like to see the word ‘nullity’ confined to those cases in the future.’
Upjohn LJ, Danckwerts LJ
[1963] 1 Ch 502, [1963] 1 All ER 873
England and Wales
Criticised – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .
Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Cited – Hannigan v Hannigan CA 18-May-2000
The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the . .
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.
Updated: 01 May 2022; Ref: scu.237251
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity dictated that the judicial discretion to grant leave should be exercised with circumspection in cases where there existed an alternative forum, that is, the courts of the foreign country where the proposed defendant carried on business and whose jurisdiction would be recognised under English conflict rules. In exercising its discretion, it is not normally appropriate for the court to compare the quality of justice obtainable in a foreign forum which adopts a different procedural system (such as that of the civil law) with that obtainable in a similar case conducted in an English court.
Arbitration agreements are not covered by the Rome Convention, and their proper law is decided according to common law principles which require selection of the law of a country as the proper law governing the agreement.
Lord Wilberforce said: ‘It is not appropriate . . to embark upon a comparison of the procedures, or methods, or reputation or standing of the courts of one country as compared with those of another’.
Lord Diplock, Lord Wilberforce
[1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241
England and Wales
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Limit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
Cited – Seashell Shipping Corporation v Mutualidad de Seguros del Instituto Nacional de Industria (‘The Magnum’ ex ‘Tarraco Augusta’) CA 1989
Where the decision as to forum depends upon the construction of the document or documents in one language and the rival courts are, on the one hand, courts whose native language is that of the document and on the other hand, courts whose native . .
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Lexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
Cited – Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
Cited – Novus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.237262
The wife applied for ancillary relief, and sought disclosure from a third party.
Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. ‘Custody’ in RSC Ord 24 was held ‘to refer to documents which are in the physical holding of a party but not in his personal capacity, rather qua company director/agent or similarly’.
Dunn LJ said: ‘It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband’s financial position . . She may . . know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division.
Applications for such discovery cannot be described as ‘fishing’ for information, as they might be in other divisions. The wife is entitled to go ‘fishing’ in the Family Division within the limits of the law and practice.’
Dunn LJ
[1978] Fam 181, [1978] 3 WLR 624
England and Wales
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .
Cited – Marketmaker Technology (Beijing) Co Ltd and Others v CMC Group Plc and Others QBD 24-Jun-2009
The claimants sought the committal of the fourth defendant for contempt having broken his undertaking to the court to provide details of his means.
Held: The terms of the undertaking were not ambiguous and could not be read in the way . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.236599
The husband and wife separated and the husband sold the property in which the wife was living. He then brought an action for possession of the property against her and now sought summary judgment.
Held: Megarry J said: ‘the defendant can obtain leave to defend if . . [she] satisfied the court ‘that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial’. These last words seem to me to be very wide. They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfied the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. . Order 14 is for the plain and straightforward, not for the devious and crafty. . ‘ and ‘there is here a case for investigation, and so not for summary decision’. The witness was not ‘devious and crafty’ rather than ‘plain and straightforward’.
Megarry J
[1968] 3 WLR 1090, [1969] 1 QB 258, [1968] 3 All ER 682
Cited – Bayoumi v Women’s Total Abstinence Union Ltd and Another ChD 21-Jan-2003
The claimant sought specific performance of a contract to purchase land from the defendant charity. The defendant had not complied with its obligations under the Act. The cliamant sought to say at the transaction came within s36(3) (that it was . .
Cited – Walsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
Cited – Standard Bank Plc v Al Jaber ComC 8-Nov-2011
Resisted application for summary judgment under contract of guarantee. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.235555
Creditors of the defendant who was subject to a Mareva injunction applied to the court to authorise the repayment of a loan out of monies otherwise subject to the order.
Held: The purpose of a freezing order is to avoid dissipation of a defendant’s assets in order to avoid a judgment, it is only bona fide debts in the ordinary course of business of a defendant whose assets are frozen that will be permitted to be paid out, including debts which are not themselves enforceable.
Robert Goff J said: ‘Mr. Hobhouse submitted that the purpose of the Mareva jurisdiction was to freeze a foreign defendant’s assets in this country to ensure that there is a fund available in this country from which the plaintiff will be able to satisfy a judgment. In support of this he relied in particular on the form of the order usually made in these cases which restrains the defendant from dealing with his assets within the jurisdiction and from removing his assets from the jurisdiction. I do not, however, see that the usual form of the order as such assists his argument. As was made plain by Mustill J. in the Third Chandris case, the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction.’
and ‘All the interveners are asking is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do.’
Donaldson J, Robert Goff J
[1979] 2 Lloyd’s Rep 491, [1981] 1 QB 65
Cited – Anton Durbeck Gmbh v Den Norske Bank Asa ComC 11-Nov-2005
The defendant bank arrested a ship carrying the claimant’s load of bananas. The cargo deteriorated while under arrest and was lost. It was not insured. The consignee sought damages from the arresting bank on the ground that it wrongfully interfered . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.234846
The court considered the undertakings to be inserted in ex parte interim injunction applications: ‘Upon drawing up an order for an interlocutory injunction the registrar invariably inserts such an undertaking on the part of the plaintiff, even though, as frequently happens, it has not been mentioned in court, but has been taken for granted. Of course such an undertaking must be voluntary: the Court cannot compel a person to give an undertaking; and, if the plaintiff declines to give it, either in court or before the registrar, the order will not be made, or, if pronounced, will not be drawn up. If in the exercise of his discretion a judge should think fit to dispense with such an undertaking he could of course do so, and there are cases in which judges have done so; but this would only be under special circumstances. In the absence of any express direction of the judge to the contrary, the undertaking will always be inserted in the order.’
North J
[1896] 2 Ch 696
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231210
[2005] 2 FLR 120
England and Wales
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231163
Munby J considered the practice to be followed in the Family Division when injunctions are granted ex parte and without notice against third parties in ancillary relief cases.
Held: The court traced the history of undertakings in damages give by litigants in the family division seeking interim injunctions.
As to the Interoute case, ‘I am not pursuaded that Lightman J.’s approach can simply be imposed without more ado in the Family Division. The circumstances in which ex parte relief is obtained in the Family Division vary very widely. Moreover, as cases such as Khreino v Khreino (No.2) (court’s power to grant injunctions) [2000] 1 FCR 80 so vividly illustrate, such relief is often granted in the Family Division in circumstances very far removed indeed from any circumstances in which ex parte relief is ever normally granted in the Chancery Division.’
Munby J
[2001] 1 All ER 300
Cited – Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd and Others ChD 10-Nov-1999
Where a party to litigation made an ex parte application, there was a clear duty on the legal representative attending to make full notes of the hearing so that, if the opposing party sought in any way to challenge what had happened, a record would . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231211
The court had been called upon to decide the domicile of Lord Inchcape at the date of his death. Counsel then asked for the costs of all parties to be paid by the estate. However, costs had been incurred before the issue of proceedings and these were not covered by the order. An application to amend the judge’s order was made under the slip rule; and the slip was said to be counsel’s accidental omission to ask for the costs in question to be paid out of the estate. Morton J referred to Fritz v. Hobson (1880) 14 Ch D 542, a decision of Fry J, and continued: ‘In the course of the argument before Fry J., counsel submitted: ‘O. XLI.A does not apply. This is not an accidental slip or omission. Those words mean only an accidental slip or omission to embody in the order something which the court in fact ordered to be done; they do not apply to an accidental omission of counsel or solicitor to ask for, or of the court to provide for, something which ought to have been provided for.’ That argument precisely expresses the doubt which I felt when the case first came before me and before this authority had been cited. The error which it is now sought to set right, if it can be properly described as an error, did not arise from an omission to embody in the order something which I in fact ordered to be done, but it arose from an accidental omission of counsel to ask that a particular thing might be done. However, Fry J., after dealing with the other grounds on which he had power to correct the order, said: ‘There is another ground on which, in my opinion, I have jurisdiction to make the order asked for, namely, under O. XLI.A. In my view the error in the present case has arisen from the accidental omission of counsel to call my attention to the adjourned motion when I pronounced my judgment, an omission very natural at a time when counsel’s attention was directed to matters of greater importance. In substance, the motion was before me at the trial, for my attention was called to the affidavits made upon it. I recollect quite enough of what took place, and I am confirmed in my recollection by the notes which I made at the time, to know that all the affidavits upon the motion were in substance before me at the trial, and that the various witnesses who made those affidavits were examined in the course of the proceedings. On this ground, therefore, I think I have jurisdiction to make the order.’ It might be said that there is a distinction between Fritz v. Hobson and the present case in that in Fritz v. Hobson Fry J. was dealing with the costs of a motion which, as he says, was in substance before him whereas I am asked now to deal with costs incurred before the issue of the summons, but I think that the reasoning in Fritz v. Hobson can be applied to the present case. It would appear that Fry J. had sufficient recollection of the whole matter in Fritz v. Hobson to feel sure that he would have made the order if he had been asked to do so. So, in the present case, I have a sufficiently clear recollection of the evidence which was produced before me as a result of those researches to feel sure that I would have made the order if I had been asked to do so.’
Morton J
[1942] Ch 394
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Applied – Tak Ming Company Limited v Yee Sang Metal Supplies Company (Hong Kong) PC 11-Dec-1972
(Hong Kong) At trial, the successful party had omitted to ask the court to award interest. Despite some delay, the court had acceded to the request to amend the order under the slip rule to add an appropriate award. The paying party appealed.
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231214
The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) of the Limitation Act 1939 should not afford a defence to the proposed action for damages, and a writ was duly issued. A judge in chambers held that this order was a nullity, and made no order. A different judge in chambers dismissed an application to rectify the order and have it treated as valid.
Held: The appeal succeeded. The court considered the different ways in which objection could be taken to proceedings according to whether the source of the objection was that it was a nullity or an irregularity.
Diplock LJ said: ‘Thomas William Harkness, retired boiler-lagger, if he had followed, as I have no doubt he has, the intricacies of the interlocutory proceedings in the case, must have thought that `the law is an ass’. I am not sure that this judgment will change his opinion, but at any rate he will not feel it is such an unjust ass as he must have felt before. It was to remedy just this kind of injustice that the new RSC Ord 2 r 1 was made.’
Lord Denning MR said that the new rule should be construed widely and generously to give effect to its manifest intentions: ‘This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that ‘it is not possible for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.”
and ‘I think that any application to the court, however informal, is a ‘proceeding’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court.’
Lord Denning MR, Diplock LJ, Russell LJ
[1967] 2 QB 729, [1966] 3 All ER 843
Rules of the Supreme Court Ord2 R2, Limitation Act 1963 2(1)
England and Wales
Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Cited – Johnson, Regina (on the Application Of) v Attorney General Admn 29-Jun-2005
. .
Cited – Hannigan v Hannigan CA 18-May-2000
The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the . .
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.
Updated: 30 April 2022; Ref: scu.230927
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the writ was a nullity which had not been cured by a proper statement of claim served within the limitation period.
Held: The appeal against strike out was allowed. The court said that under the new rules it could make a distinction between a procedural irregularity and a nullity. The writ was defective, but not a nullity, and it could be cured by delivery of a proper statement of claim even after the expiry of the limitation period.
Davies LJ: ‘The real point of Mr Caulfield’s argument, however, is the submission that to allow a plaintiff to cure a defective writ by the delivery of a statement of claim after the expiry of the appropriate period of limitation would be to destroy a right which has accrued to the defendant; and he relied on such cases as Weldon v Neal, Marshall v London Passenger Transport Board and Batting v London Passenger Transport Board in support of his argument. In those cases, however, the plaintiffs were seeking the leave of the court to do something to the detriment of the defendants which, without such leave, the plaintiffs had no right to do. I agree with Mr Caplan’s submission that the position is quite different when a plaintiff has the right without any leave of the court to take the step which is necessary to cure any defect in his proceeding.’
Holroyd Pearce LJ said: ‘The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute . . They will not add a new cause of action or allow a plaintiff to substitute a fresh case . . But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose – aid which is directed not to setting up a new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects.’ and, quoting Bowen LJ: ‘it is not possible for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.’
Holroyd Pearce LJ, Davies LJ
[1962] 1 QB 594, [1962] 2 WLR 258, [1962] 1 All ER 294
England and Wales
Cited – Harkness v Bell’s Asbestos and Engineering Limited CA 1966
The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) . .
Cited – Brophy and Another v Dunphys Chartered Surveyors CA 2-Mar-1998
Before striking out pleadings as showing no proper cause of action, the court should allow a suggested amendment, which presented a better and an arguable case. . .
Cited – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Cited – Brennan v Brighton Borough Council CA 24-Jul-1996
Challenges to a leave to appeal having been given should only to be commenced if properly justified. They are rarely likely to succeed. . .
Cited – Brennan v Brighton Borough Council CA 7-May-1997
Where there was still a possibility of a claim for restitution, a decision to strike out the action on the basis that there was no extant cause of action, was wrong. . .
Cited – Brennan v Brighton Borough Council CA 23-Apr-1998
. .
Cited – Hannigan v Hannigan CA 18-May-2000
The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.230928
Senior employees were suspected of misappropriating the company’s funds.
Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the privilege against self-incrimination in any case brought by its principal to enforce the fiduciary duties. Sir Nicolas Browne-Wilkinson V-C said: ‘Where an ex parte order is sought which might in practice preclude the defendant from raising the claim to privilege before the order is executed, the judge should not have made the ex parte order at all.’
Sir Nicolas Browne-Wilkinson V-C
[1991] Ch 512
Cited – Holder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Cobra Golf Inc and Another v Rata and Others ChD 11-Oct-1996
An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.230906
In a case where a claimant appealed to the court of appeal from the county court, and where the hearing at the county court had itself been an appeal, such a case was a second appeal, and a much higher threshold had to be passed before it was allowed.
(2000) 33 HLR 51
Cited – Cramp v Hastings Borough Council CA 29-Jul-2005
Cases challenged successful appeals by applicants for housing for homelessness, where a county court had ordered a second review of the application. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.229849
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature and that it was unnecessary for the LIP to have a McKenzie Friend.
Held: The court upheld a decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. Who, other than a party to the proceedings, his solicitor on the record or counsel, shall be permitted to attend proceedings in chambers is always a matter for the discretion of the judge. (reported 1999)
Parker LJ said: ‘In the present case the proceedings are in Chambers and in my judgment it must be a matter for the judge to have control over whom he permits to remain in a Chambers’ proceeding. There are, no doubt, many cases in which a judge will find it proper to exercise his discretion in favour of allowing a McKenzie Friend to be in Chambers and he should and will naturally view any application in that behalf with sympathy, as I have no doubt the learned judge did in this case, but, save in exceptional cases, it would be quite wrong for this court to interfere with the decision of a learned judge as to the persons whom he will allow to be present in a Chambers’ matter.’
Balcombe LJ said: ‘I agree. The position of litigants in person, who are ineligible for legal aid but at the same time unable to afford the normal services of a solicitor, is one where the use of a McKenzie Friend in appropriate circumstances can be very helpful. For that reason I agree with what my Lord has said that one hopes, and indeed expects, that judges of the Family Division, when dealing with cases in Chambers, will consider with understanding any application for a litigant in person to have the assistance of a McKenzie Friend where appropriate. But having said that, I agree entirely with what my Lord has said that this must be a matter for the discretion of the judge to conduct his or her own proceedings in Chambers.’
Parker LJ, Balcombe LJ
[1999] 2 FLR 59, CAT 679/1991
England and Wales
Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Approved – Regina v Leicester City Justices, ex parte Barrow CA 1-Aug-1991
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.227949
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal statute, and were proceeding to hear and determine the same, when the plaintiff (being an attorney) entered the police office with the informer, not as his friend or as a spectator, but for the avowed purpose of acting as his attorney and advocate touching the information ; and as such attorney and advocate, without the leave, and against the will, of the justices, was taking notes of the evidence of a witness then under examination before them, touching the matter of the said information, and was acting and taking a part in the proceedings as an attorney or advocate on behalf of the informer; that the above two defendants stated to the plaintiff, that it was not their practice to suffer any person to appear and take part in any proceedings before them as an attorney or advocate, and requested him to desist from so doing; and although they were willing to permit the plaintiff to remain in the police office as one of the public, yet that he would not desist from taking a part in the proceedings as such attorney or advocate, but asserted his right to be present, and to take such part, and to act as such attorney and advocate for the informer; and unlawfully, and against the will of the justices, continued in the police office, taking part and acting as aforesaid, in contempt of the justices ; whereupon, by order of the above two defendants, the other defendants turned the plaintiff out of the office :
Held: on demurrer, that this was a good plea, inasmuch as no person has by law a right to act as an advocate on the trial of an information before justices of the peace, without their permission.
Lord Tenterden CJ said: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the Justices.’
Lord Tenterden CJ
(1831) 2 B and Ad 663, [1831] EngR 686, (1831) 109 ER 1290
Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.227947
The applicant claimed before an industrial tribunal that he had been unfairly dismissed. His former employer alleged that, instead of being dismissed, he had resigned. The tribunal rehearsed the rival evidence of dismissal and resignation, found that the probabilities were equally balanced and dismissed the application on the basis that the applicant had not discharged the burden of proof.
Held: The tribunal was correct: ‘in the exceptional case’ a judge confronted with an issue of fact might be in breach of his judicial duty to do other than to resort to the burden of proof. He rejected a submission that the tribunal ‘should have set out in much greater detail than it did its findings on other facts, its reasoning, its analysis of those facts, where that analysis had led it, and why in the end it found that it was unable to reach a conclusion one way or the other.’
The purpose of the reasons was to tell the parties in broad terms why they had lost and won and to provide them with the materials which would enable them to know that it had made no error of law in reaching its findings of fact. There was no reason why, in the simple circumstances of that claim, the tribunal was obliged to provide any more detailed analysis of its reasoning than it had given.
May LJ, Sir Denys Buckley
[1988] QB 493, [1987] 2 All ER 496, [1987] 3 WLR 836
England and Wales
Updated: 30 April 2022; Ref: scu.226017
That the statute required it to be likely that a company might find it difficult to pay costs before allowing a requirement for security for costs, indicated that an order may be expected to cause difficulty. However the court will not allow an impoverished company to use its inability to pay costs as a weapon against a more prosperous company.
Megarry V-C
[1977] 1 WLR 899, [1977] 3 All ER 531
Cited – Keary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.225883