Category: Litigation Practice

Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd: CA 1986

The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. Allegations were made against the contractors and the architects and also structural engineers. The question then arose whether the amendments raised new claims for the purposes of section 35 of the 1980 Act.
Held: May LJ said: ‘I think it is necessary to adopt a broad approach to these cases. At the stage of the issue of the writ or the service of the statement of claim, in the present context one is not, as I think, concerned with the minutiae of the cause of action which will ultimately have to be investigated at the trial. In the Limitation Act context, one asks in quite broad terms whether the relevant factual situation . . first came about, first was suable upon more than the three, six or twelve years previously. In the res judicata context one has to ask whether the issues in the hypothetical second action were realistically before the court in the hypothetical first action. Merely to rely upon the propositions which I have already quoted from Brunsden v Humphrey in the judgment of Bowen LJ, which was referred to in the judgment of Sankey LJ in Conquer v Boot , that it is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all, (entirely accurate though that is and I would not wish, with respect, to differ at all), nevertheless in the instant context I think that it effectively begs the whole question at the outset.’
and ‘In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed reamendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement of claim in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building, does not necessarily mean in any way that they are constituents of one and the same cause of action.
Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied the law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case.’
and ‘In my opinion, to issue a writ against a party . . when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court.’
Lloyd LJ said: ‘in each case it will depend on the facts whether the damage gives rise to a separate cause of action, or not’ and ‘there may be separate causes of action in relation to the same building, depending upon the facts of the case.’

Judges:

Lloyd LJ and May LJ

Citations:

[1986] 33 BLR 77

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Cited by:

Cited – Savings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
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.

Construction, Limitation, Litigation Practice

Updated: 29 April 2022; Ref: scu.183221

Phestos Shipping Company Limited v Kurmiawan: 1983

In the course of an industrial dispute between the crew of a vessel and its owners, the crew occupied the vessel and refused to move. The owners sought interdict and interim interdict against the crew from ‘continuing in occupation and possession of, and remaining on board and trespassing on the motor vessel Bulk Trader presently lying at Leith or any deck or any compartment thereof’. Compliance with an interdict in those terms would obviously require the crew to take the positive step of removing themselves from the ship. Interim interdict was granted by the Second Division, although the competency of the order was not argued. An interdict is available ‘if there is an unlawful act or proceeding threatened or still taking place and not yet completed’. If an act or proceeding is ‘continuing’, or ‘still taking place’, it must obviously have been completed to some extent, in that a wrong has already been done to the pursuer.

Judges:

Lord Clyde

Citations:

1983 SLT 388

Cited by:

Cited – Hampden Park Limited v Frank Dow and Stephen Conley and Hampden Cars Limited and Mount Florida Cars Limited ScHC 3-Sep-2001
The case related to the disputed status of rights of way to the national football stadium in Scotland, over land adjoining the stadium. The stadium owners claimed that rights of way over the land had been used for more than twenty years. The land . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Scotland

Updated: 29 April 2022; Ref: scu.183210

De Bry v Fitzgerald: CA 1990

A request was made for security for costs in a large sum against a foreign resident party: ‘The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the defendants to come back for further security as the matter progressed.’
Lord Donaldson said that since the purpose of an order for security against a plaintiff ordinarily resident outside the jurisdiction, is to have a fund within the jurisdiction which will guarantee that any order for costs in favour of the defendant will be met, ‘it is a complete answer to an application for such an order that a fund already exists, at least if the Court can ensure that the fund will not be dissipated.
Staughton LJ said, in reliance upon Kevorkian v Burney (No 2) [1937] 4 All ER 468, that it is for the plaintiff to show that he has an asset within the jurisdiction which will remain here and then for the defendant to show, if he can, that the asset is worthless or not of sufficient worth to cover the costs.

Judges:

Dillon LJ, Donaldson LJ, Staughton LJ

Citations:

[1990] 1 WLR 552, [1990] 1 All ER 560

Jurisdiction:

England and Wales

Citing:

Cited – Kevorkian v Burney (No 2) CA 1937
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will . .

Cited by:

Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 29 April 2022; Ref: scu.183176

Singh v Nazeer: 1979

Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it .

Judges:

Sir Robert Megarry VC

Citations:

[1979] Ch 474

Jurisdiction:

England and Wales

Cited by:

Cited – Paige v Webb CA 26-Jul-2001
The claimant sought rescission of a consent order for specific performance made in an earlier action. The purchasers had not complied simply with the order, but had sought to bring back certain parts of the original contract.
Held: Once an . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 29 April 2022; Ref: scu.183057

In re Poh: HL 1983

The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Held: ‘l, decided that on the principle of Lane v. Esdaile the House had no jurisdiction to hear such an appeal. Their Lordships were ‘not concerned with the procedure whereby this appeal moved from the Divisional Court to the Court of Appeal’. The case fell within the rule in Lane v. Esdaile [1891] A.C. 210 and the House has no jurisdiction to entertain it.’

Judges:

Lord Diplock, Lords Fraser of Tullybelton, Keith of Kinkel, Scarman and Roskil

Citations:

[1983] 1 WLR 2

Jurisdiction:

England and Wales

Citing:

Cited – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Disapproved – Suthendran v Immigration Appeal Tribunal HL 1977
The Appellant had been given leave under section 3(1)(b) of the 1971 Act to enter and remain in the United Kingdom for 12 months. Before it expired, he applied for his leave to be varied by way of extension under section 3(3)(a) of the Act. The . .

Cited by:

Doubted – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Distinguished. – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review

Updated: 29 April 2022; Ref: scu.182904

Richardson v Fisher: 5 Feb 1823

Citations:

130 ER 59, (1823) 1 Bing 145, [1823] EngR 355, (1823) 1 Bing 145, (1823) 130 ER 59 (A)

Links:

Commonlii

Cited by:

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

Evidence, Litigation Practice

Updated: 29 April 2022; Ref: scu.182556

PA Thomas and Co v Mould: QBD 1968

The court urged caution in the grant of an injunction to protect information for which confidence was claimed but where that claim might not succeed. O’Connor J refused to enforce by committal an injunction restraining the defendants from making use of certain confidential information acquired by them during their employment, when the nature of the alleged confidential information had not been specified in the evidence or disclosed to the court.
O’Connor J said: ‘But where parties seek to invoke the power of the court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it.’

Judges:

O’Connor J

Citations:

[1968] 1 All ER 963, [1968] 2 WLR 737, [1968] 2 QB 913

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Marketmaker Beijing Co Ltd and others v CMC Group Plc and others QBD 8-Oct-2004
Interim injunctions had been obtained to prevent the defendants carrying out certain banking transactions.
Held: The remedy sought and the claim was extravagant and unlikely to succeed. The injunctions should be discharged. It was not at all . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice, Contempt of Court

Updated: 29 April 2022; Ref: scu.182810

Brown v Dean: 1909

In the interest of society as a whole, litigation must come to an end, and ‘When a litigant has obtained judgment in a Court of justice . . he is by law entitled not to be deprived of that judgment without very solid grounds’.
Lord Loreburn LC said, in relation to the exercise of a power to admit further evidence if it was thought ‘just’, that the evidence ‘must at least be such as is presumably to be believed, and if believed would be conclusive’. He considered an application for a new trial on the ground of res noviter, and said: ‘My Lords, the chief effect of the argument which your Lordships have heard is to confirm in my mind the extreme value of the old doctrine ‘Interest reipublicae ut sit finis litium’, remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist’.
Farwell LJ said that, on appeal there should not be permitted to be used affidavits which ‘merely show at the outside that there will be oath against oath’.

Judges:

Loreburn LC, Farwell LJ

Citations:

[1910] AC 373, [1909] 2 KB 573

Cited by:

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

Litigation Practice

Updated: 29 April 2022; Ref: scu.182557

Orr v Diaper: 1876

The plaintiff had a cause of action against the defendant and sought discovery of the name of a third party known to the defendant so that that third party could be joined in. ‘In this case the Plaintiffs do not know, and cannot discover, who the persons are who have invaded their rights, and who may be said to have abstracted their property. Their proceedings have come to a deadlock, and it would be a denial of justice if means could not be found in this court to assist the Plaintiffs.’ Discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it and that it mattered no whether his involvement was innocent and in ignorance of the wrongdoing.

Judges:

Hall VC

Citations:

(1876) 4 Ch D 92, 25 WR 23

Cited by:

Applied – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.182796

Harman Pictures N V v Osborne: ChD 1967

The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a marked similarity.
Held: There was a copyright infringement in the screenplay where the similarity in language was slight but the choice of incidents was the same. Goff J discussed the situation which arose where there was an apparent similarity of ideas: ‘It is common ground that there can be an original work entitled to protection although the subject matter is not original, but is for example, as in the present case, some well-known event in history. The precise amount of knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act, 1911, cannot be defined in precise terms: per Lord Atkinson in Macmillan and Co. Ltd. v. Cooper. There is, however, no dispute that Mrs. Woodham-Smith displayed all these qualities in amply sufficient measure and acquired copyright in her book, whilst the plaintiffs’ title to the film rights by assignment is also not disputed. What is much more difficult is whether the plaintiffs have made out a sufficient prima facie case of infringement, or rather intended infringement, and before considering the facts, I must refer at some length to the relevant law.
There is no copyright in ideas or schemes or systems or methods: it is confined to their expression . . .Br />One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history, see Poznanski v. London Film Production Ltd. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources, as was emphasised in the case of Pike v. Nicholas . . ‘
The judge asked: ‘… did John Osborne work independently and produce a script which, from the nature of things, has much in common with the book, or did he proceed the other way round and use the book as a basis, taking his selection of incidents and quotations therefrom, albeit omitting a number and making some alternations and additions, by reference to the common sources and by some reference to other sources?’
Goff J: (quoting from authority) ‘… another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. In determining whether an injunction should be ordered, the question, where the matter of the plaintiff’s work is not original, is how far an unfair or undue use has been made of the work? If, instead of searching into the common sources and obtaining your subject-matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it is an illegitimate use’. And
‘In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law has been precisely stated by Hall V.C. in Hogg v. Scott, .the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man’s labour or, in other words, his property.’

Judges:

Goff J

Citations:

[1967] 2 All ER 324, [1967] 1 WLR 723

Jurisdiction:

England and Wales

Cited by:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Navitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
Cited – Ravenscroft v Herbert ChD 1980
The plaintiff had written a non-fiction book entitled ‘The Spear of Destiny.’ He claimed infringement of copyright by the defendant in his book of fiction called ‘The Spear’. Both books were centered on a spear exhibited in Vienna, said to have been . .
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.

Litigation Practice, Intellectual Property

Updated: 29 April 2022; Ref: scu.182266

In Re Solicitors, Ex Parte Peasegood: QBD 6 May 1993

A request to the court for the removal of a solicitor from the Roll was to be made via Counsel, and not by a litigant in person.

Citations:

Times 06-May-1993, Independent 06-May-1993

Statutes:

Solicitors Act 1974 50 51

Jurisdiction:

England and Wales

Litigation Practice, Legal Professions

Updated: 29 April 2022; Ref: scu.82191

Nottingham Building Society v Eurodynamics Systems plc: 1993

The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the better the chances of avoiding injustice. The court might still grant an injunction where the chances of success are lower, but the possible prejudice is greater.
The court set out what was meant by the test for the ‘balance of convenience’: ‘In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffmann J. [as he then was].
Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.
Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted.
But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.’

Judges:

Chadwick J

Citations:

Times 02-May-2003, [1993] FSR 468

Jurisdiction:

England and Wales

Cited by:

Cited – Choudry and others v Triesman ChD 31-Mar-2003
The applicants sought an order requiring the respondent general secretary of the Labour Party to allow them to stand as candidates for the party in the forthcoming local elections. After allegations about the way in which selection had been carried . .
Approved – Zockoll Group Limited v Mercury Communications Limited CA 8-Jul-1997
. .
Cited – Jewellery Appraisal Services v Belson and others QBD 11-Apr-2005
The defendants had sold a business and included a non-compete covenant. The claimants sought to enforce it against them. It was said that they had approached insurers with a view to commencing business supplying jewelry. The defendants said their . .
Approved – Zockoll Group Ltd v Mercury Communications Limited CA 27-Aug-1997
The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury . .
Cited – Donnelly and others v Weybridge Construction Ltd TCC 22-Mar-2006
Application for specific dicslosure order. . .
Cited – Udal and Another v Dutton and Another TCC 30-Nov-2007
The claimants sought an interim injunction to restrain the defendants from demolishing a party wall in the garden. . .
Cited – Lonrho Africa (Holdings) Ltd v Norse Air Ltd and Others ComC 13-Mar-2008
. .
Cited – AMEC Group Ltd v Universal Steels (Scotland) Ltd TCC 25-Mar-2009
The claimant sought an interlocutory injunction to require the defendant to deliver up Quality Assurance documentation. . .
Cited – AON Ltd v JCT Reinsurance Brokers Ltd and Others QBD 7-Oct-2009
The claimant said that the defendant had encouraged a team of its workers to break their contracts and to leave to work with the defendants. . .
Cited – Landmark Brickwork Ltd v Sutcliffe and Others QBD 17-May-2011
The claimant company sought interlocutory orders against its former senior officers. . .
Appeal from – Nottingham Building Society v Eurodynamics Systems plc CA 1995
Dictum at first instance approved. . .
Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.181840

Smith v Linskills: CA 1996

The claimant, a convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction.
Held: The case was dismissed. The claimant was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The case of Hunter does not lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it.
CS Sir Thomas Bingham MR identified: ‘the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. ‘ and ‘It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted . . It is certainly true that in his speech in Hunter’s case . . Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse.’

Judges:

Sir Thomas Bingham, MR

Citations:

Gazette 28-Feb-1996, Times 07-Feb-1996, [1996] 1 WLR 763, [1996] 2 All ER 353

Jurisdiction:

England and Wales

Citing:

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 by:

Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Applied – Regina v Steidl and Baxendale-Walker 27-Jun-2002
(Southwark Crown Court) The case was a prosecution for serious fraud. In civil proceedings, despite evidence to suggest a powerful case for dishonesty, a High Court judge had concluded that the claimant had failed to establish that the defendant, . .
Applied0 – Regina v Stocker CCC 23-Nov-2004
(Central Criminal Court) The court was due to try a case alleging that the defendant had killed her child. In care proceedings Hedley J had concluded that a mother had killed her child, but he was positively satisfied that she lacked the intention . .
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.

Professional Negligence, Legal Professions, Litigation Practice

Updated: 28 April 2022; Ref: scu.181090

Hollington v E Hewthorn and Co Ltd: CA 1943

Decisions of an earlier tribunal were not binding or admissible in later proceedings where the earlier proceedings were before a court of criminal jurisdiction. Evidence of a prior conviction would not have been admissible in separate criminal proceedings to establish the truth of the underlying allegation. It was res inter alios acta.

Citations:

[1943] KB 587

Jurisdiction:

England and Wales

Cited by:

Cited – The Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Regina v Hayter CACD 16-Apr-2003
The defendant appealed against his conviction for murder, on the basis that the jury had used a conclusion about the guilt of a jointly accused to support his own conviction.
Held: Section 74 had altered the law, and earlier cases were no . .
Cited – Hi-Lite Electrical Ltd v Wolseley UK Ltd QBD 17-Jul-2009
The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 28 April 2022; Ref: scu.180961

Rickards v Rickards: CA 1990

The Court of Appeal considered the circumstances in which it could depart from its own earlier decisions under the residual principle. The court refused to follow a previous decision of the same court because, although the relevant House of Lords decision had been cited, the later court held that the earlier court had misread or misunderstood the House of Lords case. There was in any event no possibility of appeal from this decision, and the Court of Appeal could not avoid it.

Judges:

Lord Donaldson

Citations:

[1990] Fam 194

Jurisdiction:

England and Wales

Citing:

Applied – Williams v Fawcett CA 1985
The court was asked as to the requirement of a notice to show cause why a person should not be committed to prison for contempt of court.
Held: The court refused to follow its earlier decisions as to committal procedures where they were the . .

Cited by:

Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Summers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.179846

Ansari and Others v Puffin Investment Co Ltd and Others: QBD 8 May 2002

The defendant appealed against a summary order of a Master. Should this be by way of a rehearing or by way of review, where the sole ground of the appeal was that the Master had failed to give reasons for his decision, and where the court had refused to give its reasons after request or where there was some other reason for not requesting reasons?
Held: The High Court did have the choice of dealing with such an appeal by way of a rehearing notwithstanding the case of Lewis.

Judges:

Burton J

Citations:

Times 17-Jul-2002

Citing:

Distinguished – Secretary of State for Trade and Industry v Lewis and Another ChD 19-Jul-2001
Where the sole substantial issue was that the court of first instance had failed to give reasons for its decision, it would normally be wrong for an appellate court to order a rehearing rather than a review. This might be appropriate if the court . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.174372

Gwembe Valley Development Co Ltd (in Receivership) v Koshy and Others (No 4): ChD 18 Dec 2001

The respondent to the appeal had obtained an asset freezing order after the judgment subject to the appeal. On the appeal, the appellant itself sought a cross undertaking for costs.
Held: Although the normal practice was not to make such an order, in this case the leave to appeal had been against the substance of the underlying finding, and the point at issue was difficult. If he succeeded on the appeal, he would have no security for the costs incurred. An undertaking was properly required

Judges:

Rimer J

Citations:

Times 28-Feb-2002

Jurisdiction:

England and Wales

Litigation Practice, Costs

Updated: 28 April 2022; Ref: scu.167667

Versailles Trade Finance Ltd (in administrative receivership) v Clough: CA 1 Nov 2001

A defendant to civil proceedings could not use the privilege against self-incrimination as a defence against an application for summary judgement, where his plea amounted to no more than a request to the court to prevent the other party relying upon information and material already in its possession. Where criminal proceedings were anticipated or uncompleted, a stay might be granted where the civil procedure would create a real risk of self-incrimination.

Judges:

Brooke LJ, Waller LJ and Longmore LJ

Citations:

Times 01-Nov-2001, Gazette 08-Nov-2001

Jurisdiction:

England and Wales

Litigation Practice, Human Rights

Updated: 28 April 2022; Ref: scu.166721

Mercier v Clark and Walker Limited: CA 9 Jul 1997

The claimant sought leave to appeal. After their car had been repaired, there was a dispute, and they stopped their cheque. Proceedings were taken, and they lost. Eventually the garage obtained an order for the sale of the car. Mrs Mercier made an interpleader asserting the car was hers. She sought leave to appeal the failure of that application. Leave was refused.

Citations:

[1997] EWCA Civ 2056

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 28 April 2022; Ref: scu.142453

Unilever Plc v Chefaro Proprietaries Ltd; Chiron Corp etc v Organon: CA 24 Nov 1994

The Court of Appeal gave guidance on what criteria are to be used by them for expediting appeals cases.
Glidewell LJ stated that what must be shown ito establish common design in an allegation of tort is that there are ‘facts from which an inference [of an agreement] could clearly and properly be drawn’.

Judges:

Glidewell LJ

Citations:

Times 28-Nov-1994, Independent 24-Nov-1994, [1994] FSR 135

Jurisdiction:

England and Wales

Cited by:

Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 28 April 2022; Ref: scu.90056

Saab and Another v Saudi American Bank: CA 29 Jul 1999

When serving an English writ on an oversea company’s premises in London, it was not necessary for the allegation to be in respect of business issues wholly or even substantially arising here, only that there is a real element of such business conducted here.

Citations:

Times 29-Jul-1999, Gazette 11-Aug-1999

Statutes:

Companies Act 1985 694A, Oversea Companies and Credit and Financial Institutions (Branch Disclosure) Regulations 1992 (1992 No 3179)

Jurisdiction:

England and Wales

Litigation Practice, International

Updated: 28 April 2022; Ref: scu.88968

Rees and Another v Mabco (102) Ltd: CA 11 Dec 1998

Insurers declined to represent an insured facing a claim for damages for secondary liability for asbestos injury. The insured losing by default, the insurers then sought to be joined to defend the action, but still showed no good defence and were refused.
Held: Where an underwriter could demonstrate that there was a defence which carried a real prospect of success which had not been run by the assured, the discretion to permit joinder was available despite the fact that a default judgment had already been obtained.

Citations:

Gazette 27-Jan-1999

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Cited – Humber Work Boats Ltd v ‘Selby Paradigm’, Owners of Mv and others AdCt 23-Jul-2004
The barge had become holed when run aground and then repaired. The repair was faulty, and it sank. The insurers rejected the claim saying that the owners had failed to disclose a report showing areas of thinning of the hull. The underwriters sought . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 28 April 2022; Ref: scu.85933

Prolaw Ld v Adams (T/A Nigel Adams and Co): CA 4 Jun 1998

Automatically struck out case can continue until the order in that behalf and after successful appeal by virtue of manual directions instead of automatic timetable etc.

Citations:

Gazette 10-Jun-1998, Times 04-Jun-1998

Statutes:

County Court Rules 1981 Order 17 Rule

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.85057

Presentaciones Musicales Sa v Secunda and Another: CA 29 Nov 1993

A writ was issued within the limitation period applicable to the cause of action. However, the authority of the nominal plaintiff was not obtained within the limitation period.
Held: The adoption by a plaintiff of proceedings issued without his authorisation by his solicitor was acceptable where this occurred within the appropriate limitation period. The raising of proceedings was held not to be a nullity.
Roch LJ considered whether the validity of the ratification of the unauthorised act of commencing proceedings was governed by English law or Panamanian law. Counsel for PMSA had submitted that the question of Mr Van Walsum’s authority was governed by Panamanian law and under that law the acts of the liquidators in May 1991 had put the company and Mr Van Walsum in the position they would have been in had Mr Van Walsum had actual authority to commence proceedings in 1988. Roch LJ disagreed: ‘I do not doubt that if the issue had been whether Mr. Van Walsum had actual authority to instruct Goodman Derrick and Co. to issue proceedings in April 1988, that question could only have been resolved by the court examining the law relating to corporate bodies in the Republic of Panama and, probably, the constitution of the plaintiff company. In the present case there is no dispute, for the purposes of resolving the preliminary issue, that Mr. Van Walsum did not have actual authority in April 1988.
What has to be considered, in my view, is first the effect of the contract apparently entered into between the plaintiff company and Goodman Derrick and of the act of Goodman Derrick in issuing proceedings against the defendants. The law which should apply to that contract and to that act, in my opinion, is the law which has the closest connection with that contract and with that act, namely English law. Dicey and Morris, The Conflict of Laws, 12th ed. (1993), p. 1459, under the heading ‘English Conflicts Rules’ says: ‘Where the agent lacks actual authority from the principal, it seems right in principle, that the law applicable to the contract between the agent and a third party, should determine whether the principal is bound or entitled. In effect in this situation one is asking whether the agent had apparent or ostensible authority to bind the principal . . As between the principal and the agent, the scope of the agent’s authority to bind the principal and to confer rights upon him is necessarily determined by the law which governs their relationship, but third parties must be able to assume, at least where the agent has no actual authority from the principal, that the agents’ authority covers everything which would be covered by the authority of an agent appointed under the law applicable to the contract made between the agent and the third party.’
The correct analysis of the facts of this case, in my judgment, is that the agents whose authority really has to be considered are Goodman Derrick and the act, the validity of which has to be considered is their act of commencing proceedings. Goodman Derrick are English solicitors retained, ostensibly on behalf of a Panamanian company, to perform legal services for that company in England. On that analysis the validating of the act of commencing proceedings by later ratification by those who clearly have authority under Panamanian law to do so on behalf of the plaintiffs must be a matter for English law.
. . Once it is shown by the law of Panama that neither Mr. Van Walsum nor Goodman Derrick were authorised to act, the consequences of that lack of authority are matters for the law of the place where the unauthorised act was performed. Thus . . I conclude that the issue of ratification is governed by English law.’
Dillon LJ said: ‘It is well recognised law that where a solicitor starts proceedings in the name of a plaintiff – be it a company or an individual – without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings. In that event, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured . . The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified . . ‘

Judges:

Roch LJ, Dillon LJ

Citations:

Gazette 12-Jan-1994, Times 29-Nov-1993, [1995] EMLR 118, [1994] 2 All ER 737, [1994] Ch 271, [1994] 2 WLR 660

Jurisdiction:

England and Wales

Cited by:

Applied – Adams and Others v Ford and Others CA 26-Apr-2012
The several claimants had invested in a technology based investment scheme, which they now said was fraudulent. The defendants said that the original, large number of claimants had been reduced, but the lawyers acting for the claimants had issued . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice

Updated: 28 April 2022; Ref: scu.85022

Phelps v Spon-Smith and Co (A Firm): ChD 26 Nov 1999

It was possible to amend a writ to add a cause of action out of time where that cause had been included in the original pleadings served within the limitation period, but which had been omitted by mere error from the writ.

Citations:

Times 26-Nov-1999, Gazette 01-Dec-1999

Statutes:

Limitation Act 1980 25, Rules of the Supreme Cour Order 20

Jurisdiction:

England and Wales

Litigation Practice, Limitation

Updated: 28 April 2022; Ref: scu.84701

Practice Direction (Royal Courts of Justice: Reading List Time Estimates): ChD 1 Feb 2000

When filing a bundle with the High Court, the parties must from January 11 2000, also file a reading list and an estimate of the time required for that reading. If the parties are unable to agree that list, then each should submit separate lists and time estimates.

Citations:

Times 01-Feb-2000

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.84908

Nikitenko v Leboeuf Lamb Greene and Macrae (A Firm) and Another: ChD 26 Jan 1999

The fundamental issue for the court when considering a mandatory interim order had to be which course of action would cause the least injustice if it was wrong. This might outweigh the usual need to establish a strong case before the order is made.

Citations:

Times 26-Jan-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.84303

McPhilemy v Times Newspapers Ltd and Others: CA 7 Jun 2000

The new civil procedure rules did not change the basic rules of evidence. The old rule prevented a party putting in evidence a witness statement which he knew conflicted substantially with the case he wished to place before the jury, and then be allowed to assert to a jury that he disagreed with large parts of the evidence. There is now a discretion in the judge to do so, but the judge must reconcile rules which had been established in an adversarial system with newer rules.

Citations:

Times 07-Jun-2000, [2001] 4 All ER 861

Jurisdiction:

England and Wales

Citing:

See also – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
See also – McPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
See also – McPhilemy v Times Newspapers Limited; Clarke and Neil (1) CA 25-Nov-1998
. .

Cited by:

Cited – Kiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .
See also – McPhilemy v Times Newspapers Limited; Clarke and Neil (1) CA 25-Nov-1998
. .
See Also – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
See Also – McPhilemy v Times Newspapers Ltd; Liam Clarke and and Andrew Neil (No 3) CA 12-Jun-2001
In defamation proceedings the defendant had invited one issue to be left to the jury. After losing the case, the defendant sought to appeal, arguing that the jury’s verdict was perverse. It was held that such an appeal amounted to an abuse of . .
See Also – McPhilemy v Times Newspapers Ltd and others CA 12-Jun-2001
. .
See Also – McPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.83583

Littrell v Government of the United States of America and Another (No 2): CA 24 Nov 1993

The plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force.
Held: Section 16(2) applied and therefore the case fell to be decided at common law. The acts complained of took place at a military hospital within the control of the United States Air Force. They involved only United States personnel. The operation of a military hospital, although requiring much the same skills as the operation of a civilian hospital, is a recognised military operation. The standard of medical care which the United States should afford its own servicemen was a matter within its own sovereign authority. The maintenance of the base itself was plainly a sovereign activity.
Hoffmann LJ said: ‘The context in which the act took place was the maintenance by the United States of a unit of the United States Air Force in the United Kingdom. This looks about as imperial an activity as could be imagined. But it would be facile to regard this context as determinative of the question. Acts done within that context range from arrangements concerning the flights of the bombers – plainly jure imperii – to ordering milk for the base from a local dairy or careless driving by off-duty airmen on the roads of Suffolk. Both of the latter would seem to me to be jure gestionis, fairly within an area of private law activity. I do not think that there is a single test or ‘bright line’ by which cases on either side can be distinguished. Rather, there are a number of factors which may characterise the act as nearer to or further from the central military activity . . Some acts are wholly military in character, some almost entirely private or commercial and some in between.’

Judges:

Hoffmann LJ

Citations:

Times 24-Nov-1993, Independent 02-Dec-1993, Gazette 26-Jan-1994, [1995] 1 WLR 82, [1994] 4 All ER 203

Statutes:

1951 NATO Agreement, State Immunity Act 1978 16(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice, International

Updated: 28 April 2022; Ref: scu.83095

MacDonald and Another v Thorn Plc: CA 15 Oct 1999

A court faced an application to set aside a judgment entered into by default of the defendant filing a defence. He agreed that the defendant had a defence on the merits, but because the defendant had been dilatory in dealing with the matter before issue of proceedings, he refused to set aside the default judgment. It was held that the time before proceedings was irrelevant for this purpose, and must be disregarded.

Citations:

Times 15-Oct-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.83267

Mullen v Birmingham City Council: QBD 29 Jul 1999

Under the new rules, judges were required to take greater control over court proceedings, and accordingly had the power to entertaining a submission of no case to answer at the close of the claimant’s case and without first requiring the defendant to elect not to offer any evidence.

Judges:

David Foskett QC

Citations:

Times 29-Jul-1999

Statutes:

Civil Procedure Rules 3.1(2)(m)

Jurisdiction:

England and Wales

Cited by:

Applied – Bentley v Jones Harris and Co CA 1-May-2001
The judge below acceded to a submission of no case to answer without putting the defendant to his election.
Held: ‘At the time of this trial it was, it seems, common ground between counsel for both parties and the judge that under the CPR . .
Applied – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.84116

Mont Blanc Simplo Gmbh v Sepia Products Inc: ChD 2 Feb 2000

In cases involving allegations of passing off, the judge in the case will usually be able himself to assess whether and to what extent there may have been confusion engendered in the minds of potential customers. Accordingly, there will not always be a necessity for claimants to bring forward evidence of actual confusion in the minds of the public.

Citations:

Times 02-Feb-2000

Jurisdiction:

England and Wales

Cited by:

Cited – Property Compliance Ltd v Donovan Nom 26-Jun-2007
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 28 April 2022; Ref: scu.83805

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 the merits.

Judges:

Russell LJ and Hollis J

Citations:

Ind Summary 15-Mar-1993

Statutes:

Rules of the Supreme Court 18-2 2-1

Jurisdiction:

England and Wales

Citing:

Cited – Anlaby v Praetorius CA 1888
The court below had refused an application to set aside a judgment obtained irregularly.
Held: The appeal succeeded. A Statement of Claim indorsed on the Writ is a pleading.
Lopes LJ held: ‘the judgment entered by the plaintiff was . .
Cited – In re Pritchard CA 1963
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 . .
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 by:

Cited – Faircharm Investments Ltd v Citibank International Plc CA 6-Feb-1998
An irregular judgment had been entered. A claim was made after the proceeds of a life policy secured under a mortgage had been wrongly paid out after the mortgage was redeemed by a third party.
Held: The appeal was dismissed. The so-called . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.78989

Cuadrilla Bowland Ltd and Others v Lawrie and Others: CA 23 Jan 2020

Judges:

Underhill, David Richards, Leggatt LJJ

Citations:

[2020] EWCA Civ 9, [2020] WLR(D) 48, [2020] 4 WLR 29

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Litigation Practice

Updated: 28 April 2022; Ref: scu.646343

Boyd and Another v Ineos Upstream Ltd and Others: CA 3 Apr 2019

Appeal from injunctions to Ineos Upstream Limited and various subsidiaries of the Ineos Gropu as well as certain individuals. The injunctions were granted against persons unknown who are thought to be likely to become protesters at sites selected by those companies for the purpose of exploration for shale gas by hydraulic fracturing of rock formations, a procedure more commonly known as ‘fracking’.

Judges:

Longmore, David Richards, Leggatt LJJ

Citations:

[2019] EWCA Civ 515, [2019] 4 WLR 100, [2019] WLR(D) 201, [2019] HRLR 11, [2019] Env LR D1

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Environment

Updated: 28 April 2022; Ref: scu.635244

The London Borough of Bromley v Persons Unknown (Rev 3): CA 21 Jan 2020

Appeal from rejection of request for injunction to restrain occupation of land.

Judges:

Ryder, Coulson , Haddon-Cave LJJ

Citations:

[2020] EWCA Civ 12, [2020] WLR(D) 35, [2020] PTSR 1043

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 28 April 2022; Ref: scu.646346

London Borough of Enfield v Persons Unknown and Others: QBD 2 Oct 2020

The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person had yet been served with any documents, and that the legal landscape that governs proceedings and injunctions against Persons Unknown had changed since the Interim and Final Orders were granted in this case.

Judges:

Nicklin J

Citations:

[2020] EWHC 2717 (QB)

Links:

Bailii

Statutes:

Local Government Act 1222
Local Government Act 1972 222, Town and Country Planning Act 1990 187B, Civil Procedure Rules 6.15(2)

Jurisdiction:

England and Wales

Citing:

Cited – Canada Goose UK Retail Ltd and Another v Persons Unknown and Another QBD 20-Sep-2019
Where an interim injunction had been obtained against person unknown, service of the claim to be answered was fundamental to the principles of the judicial system. There is an important distinction between ‘a person’s general awareness of the . .
Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .
Cited – Boyd and Another v Ineos Upstream Ltd and Others CA 3-Apr-2019
Appeal from injunctions to Ineos Upstream Limited and various subsidiaries of the Ineos Gropu as well as certain individuals. The injunctions were granted against persons unknown who are thought to be likely to become protesters at sites selected by . .
Cited – The London Borough of Bromley v Persons Unknown (Rev 3) CA 21-Jan-2020
Appeal from rejection of request for injunction to restrain occupation of land. . .
Cited – Canada Goose UK Retail Ltd and Another v Unknown Persons CA 5-Mar-2020
‘This appeal concerns the way in which, and the extent to which, civil proceedings for injunctive relief against ‘persons unknown’ can be used to restrict public protests.’ . .
Cited – Cuadrilla Bowland Ltd and Others v Lawrie and Others CA 23-Jan-2020
. .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice, Local Government

Updated: 28 April 2022; Ref: scu.655146

Cumper v Pothecary: 1941

The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, does constitute a contract.’ The defendant must show that good reason for his application, such as the discovery of further evidence which puts a wholly different complexion on the case or a change in legal outlook brought about by a new judicial decision. Apart from matters such as fraud or mistake affecting the original payment, the court should consider whether there is a sufficient change of circumstance since the money was paid to make it just that the defendant should have an opportunity of withdrawing or reducing his payment.

Judges:

Goddard LJ

Citations:

[1941] 2 KB 58

Jurisdiction:

England and Wales

Cited by:

Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Cited – Manku v Seehra OR 1987
The defendant had made a payment into court in the light of a joint experts meeting. In the light of the opinion of another surveyor, he sought leave to withdraw his notice of payment in. The plaintiff gave notice accepting the payment in on the . .
Approved – MRW Technologies v Cecil Holdings 22-Jun-2001
The court heard an appeal against a Master’s order which had given the defendant permission under rule 36.6(5) to withdraw a Part 36 payment.
Held: The same considerations apply to giving permission to withdraw money in court as to refusing . .
Cited – Crouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.199955

Roberts Petroleum Ltd v Bernard Kenny Ltd: HL 2 Jan 1983

The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave the plaintiff an unfair advantage in the winding up. The defendant appealed against the re-instatement of the charging order absolute.
Held: The defendant’s appeal succeeded. A charging order nisi is precarious until it is made absolute; and there is a discretion whether or not to make it absolute when the matter comes back before the court. As to the exercise of that discretion.
a) The burden of showing cause why an interim order shall not be made final is on the judgment debtor; and
b) In exercising its discretion, the court must take into account all the relevant circumstances whether they arose before or after the interim order.
Lord Brightman said that the court should assist the judgment creditor to recover the debt due to it, and ‘A judgment creditor is in general entitled to enforce a money judgment which he has lawfully obtained against a judgment debtor by all or any of the means of execution prescribed by the relevant rules of court.’ As to the steps available for the regulation of the enforceent of money claims, he said: ‘Neither step not counterstep casts any discredit on those involved . . A person who has the misfortune to have given credit to a company which runs into financial difficulties has every right to seek to secure himself. And such company or its other creditors have every right to hasten liquidation in order to thwart such a purpose’.

Judges:

Lord Brightman

Citations:

[1983] 2 AC 192, [1983] 1 All ER 564, [1983] BCLC 28, [1983] 2 WLR 305

Statutes:

Administration of Justice Act

Jurisdiction:

England and Wales

Citing:

Appeal from – Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) CA 1982
The plaintiffs had supplied petrol to the defendant who owned two filling stations. The defendant prepared a statement of affairs ready to hold a meeting of creditors. The plaintiffs took their claim to judgement and obtained a charging order nisi . .
Not approved – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .

Cited by:

Applied – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .
Cited – In re Buckingham International Plc and In the Matter of Insolvency Act 1986; Mitchell v Buckingham International Plc CA 16-Feb-1998
. .
Cited – Ropaigealach v Allied Irish Bank Plc CA 12-Nov-2001
. .
Cited – Westacre Investments Inc v The State-Owned Company Yugoimport SDPR ComC 21-Apr-2008
. .
Cited – Kier Regional Ltd (T/A Wallis) v City and General (Holborn) Ltd and others TCC 17-Oct-2008
kier_cityTCC2008
The claimant sought to make final an interim third party debt order. The defendants sought a stay of the enforcement. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 28 April 2022; Ref: scu.181249

Tibbles v SIG Plc (T/A Asphaltic Roofing Supplies): CA 26 Apr 2012

The court considered applications for relief from sanction under CPR 3.1(7).
Held: An application under CPR 3.1(7) usually requires a change of circumstances.
Considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. The court emphasised that the application must be made promptly.

Judges:

Rix, Etherton, Lewison LJJ

Citations:

[2012] EWCA Civ 518, [2012] 4 All ER 259, [2012] CP Rep 32, [2012] 1 WLR 2591

Links:

Bailii

Statutes:

Civil Procedure Rules 3.1(7)

Jurisdiction:

England and Wales

Cited by:

Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.453007

Berkeley Administration Inc v McClelland: CA 1990

There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given on interim injunctions applications, and referred to a note in the Supreme Court Practice and said: ‘These statements of principle justify, in my judgment, the proposition that (subject to any direction to the contrary a court may in a particular case give): (i) advantage can be taken of a cross-undertaking in damages by every defendant who was party to the action when the undertaking was granted; (ii) advantage cannot be taken of the cross-undertaking by persons who are not parties to the action, or, at least, do not become parties until after the order has been discharged.
That leaves outstanding the position regarding defendants who are joined as parties during the currency of the order. That state of affairs does not apply in the present case. I do not regard the correct answer as being clear from the decided cases, although I would, for my part, wish to extend the benefit of a cross-undertaking in damages to all defendants who became parties while the undertaking was in force.’ However: ‘There is, in my judgment, no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole.’

Judges:

Scott VC, Roch and Potter LJJ

Citations:

[1990] 2 QB 407, [1990] I LPr 772, [1990] FSR 381

Jurisdiction:

England and Wales

Cited by:

Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
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 – 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 . .
See Also – Berkeley Administration Inc v Mcclelland and Others CA 13-Aug-1996
Third Party who had been joined in after an injunction was discharged takes no benefit of cross undertaking. . .
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.

Litigation Practice

Updated: 28 April 2022; Ref: scu.180969

Abbey National Bank plc v Matthews and Son (a Firm), David Gouldman and Co (a firm): ChD 21 Feb 2003

The claimant made claims against two defendants. It had compromised the claim against one defendant, taking an assignment of that party’s claim against the remaining defendant and continued against that second defendant.
Held: It could not be said that no liability remained (Lister), and the settlement was bona fide, though it had avoided a limitation bar by taking the assignment. However the court remained under a duty to consider the position under the Act. That would require an independent assessment of the liability of the party now discharged, and that had been made impossible by the settlement. The court could not comply wth its duty, and the claim was dismissed.

Judges:

Simon Berry QC

Citations:

Times 31-Mar-2003, Gazette 10-Apr-2003

Statutes:

Civil Liability (Contribution) Act 1978 2(1)

Jurisdiction:

England and Wales

Citing:

Cited – R A Lister Ltd v Thompson (Shipping) Ltd 1987
When asking whether a liability remained to support a claim, after a compromise, a relevant liability would include a future liability imposed by the court even if that had not yet been assessed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.180958

Bonzel (T) v Intervention Ltd (No3): 1991

Citations:

[1991] RPC 553

Jurisdiction:

England and Wales

Cited by:

on disclosure, applied – McGhan Medical Uk Ltd v Nagor Ltd and Biosil Ltd PatC 28-Feb-2001
The claimants had a patent for breast (and other) implants, the surface of which was claimed to be an improvement. They claimed infringement, and the defendant challenged the validity of the patent as lacking novelty, obviousness, and that . .
See Also – Bonzel v Intervention Ltd 1991
‘the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 28 April 2022; Ref: scu.180975

Derby and Co Ltd v Weldon (No 8): CA 27 Jul 1990

There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The documents and all copies were to be returned. The defendant was seeking to take advantage of what was an obvious mistake. The court would not support them, but use its equitable jurisdiction.

Citations:

[1991] 1 WLR 73, [1990] 3 All ER 762, Times 29-Aug-1990, (1990) 136 SJ 84

Jurisdiction:

England and Wales

Citing:

Applied – Guinness Peat Properties Ltd v Fitzroy Robinson Partnership CA 1987
Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer . .
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Cited – English and American Insurance Co Ltd and Others v Herbert Smith ChD 1987
Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse. . .
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.

Cited by:

Cited – Mohamad Al Fayed v The Commissioner of Police of the Metropolis CA 29-May-2002
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also . .
Cited – Brooker and Brooker v Chief Constable of Thames Valley Police CA 26-Oct-1998
The plaintiffs claimed damages against the respondents for wrongful arrest and false imprisonment. By mistake the defendants disclosed a letter from a senior officer supporting the allegation, despite which the Police Complaints Authority had denied . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 10) CA 1991
A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.180943

Hirschfeld v McGrath: QBD 15 Feb 2011

The court considered an application for the restraint of publication of confidential material. The defendant had entered appropriate undertakings, and the court now considered whther it was appropriate to continue an anonymity order.

Judges:

Tugendhat J

Citations:

[2011] EWHC 249 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.429642

United Company Rusal Plc and Others v HSBC Bank Plc and Others: QBD 1 Mar 2011

The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations which an interlocutory process imposes, that factors exist which allow the court to take jurisdiction, or that the applicant has a much better argument than the defendant. That test is appropriate in Norwich Pharmacal applications.’

Judges:

Tugendhat J

Citations:

[2011] EWHC 404 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .

Cited by:

Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.430255

Wheeler v Le Marchant: CA 1881

Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. Part of the estate consisted of land in respect of which the defendant made an agreement with Mr Wheeler that he (Mr Wheeler) was to erect certain buildings and then be granted a lease of that land. The parties fell out. Mr Wheeler brought an action for specific performance and the defendant trustee claimed privilege for the reports of the estate-agent/surveyor made to the solicitors in the course of the administration of the estate.
Held: While the communications between the defendant and the estate’s solicitors were privileged, the reports of the estate-agent/surveyor were not.
Cotton LJ: ‘Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected. But here we are asked to extend the principle to a very different class of cases, and it is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their legal advice, that any privilege should be extended to communications such as these.’
Brett LJ: ‘The rule as to the non-production of communications between solicitor and client is a rule which has been established upon grounds of general or public policy. It is confined entirely to communications which take place for the purpose of obtaining legal advice from professional persons. It is so confined in terms, it seems to me it is so confined in principle, and it does not extend to the suggested case.’ and ‘Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all the communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected.’
Jessel MR: ‘What they contended for was that documents communicated to the solicitors of the Defendants by third parties, though not communicated by such third parties as agents of the clients seeking advice, should be protected, because those documents contained information required or asked for by the solicitors, for the purpose of enabling them the better to advise the clients. The cases, no doubt, establish that such documents are protected where they have come into existence after litigation commenced or in contemplation, and when they have been made with a view to such litigation, either for the purpose of obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence, but it has never hitherto been decided that documents are protected merely because they are produced by a third person in answer to an inquiry made by the solicitor.’ and ‘It must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character, and in this country is restricted to the obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that that legal advice may be obtained safely and sufficiently.’

Judges:

Cotton LJ, Sir George Jessel MR, Brett LJ

Citations:

(1881) 17 Ch D 675

Jurisdiction:

England and Wales

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180862

Anderson v Bank of British Columbia: CA 1876

Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in Oregon (Mr Russell) for full particulars of transactions on the account. Mr Russell replied with the particulars and in the ensuing litigation the bank claimed that the reply was privileged.
Held: Mr Russell’s letter was not privileged. The bank’s London manager was taking steps to inform himself of the position rather than to obtain material which would find its way, in due course, into counsel’s brief. It was necessary that a client be free to be quite open with his legal adviser. ‘The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.’ The court went on to define the extent of the rule: ‘Now, as to the extent of the rule. It goes not merely to a communication made to the professional agent himself by the client directly, it goes to all communications made by the client to the solicitor through intermediate agents, and he is not bound to write letters through the post, or to go himself personally to see the solicitor; he may employ a third person to write the letter, or he may send the letters through a messenger, or he may give a verbal message to a messenger, and ask him to deliver it to the solicitor, with a view to his prosecuting his claim, or of substantiating his defence. Again, the solicitor’s acts must be protected for the use of the client. The solicitor requires further information, and says, I will obtain it from a third person. That is confidential. It is obtained by him as solicitor for the purpose of the litigation, and it must be protected upon the same ground, otherwise it would be dangerous, if not impossible, to employ a solicitor. You cannot ask him what the information he obtained was. It may be information simply for the purpose of knowing whether he ought to defend or prosecute the action, but it may be also obtained in the shape of collecting evidence for the purpose of such prosecution or defence. All that, therefore, is privileged.’
(James LJ) The principle is ‘that as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as the materials for the brief.’ Mellish LJ: ‘To be privileged it must come within one of two classes of privilege, namely, that a man is not bound to disclose confidential communications made between him and his solicitor, directly, or through an agent who is to communicate them to the solicitor; or, secondly, that he is not bound to communicate evidence which he has obtained for the purpose of litigation.’

Judges:

Sir George Jessel MR, James LJ

Citations:

(1876) 2 ChD 644

Jurisdiction:

England and Wales

Cited by:

Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180866

Southwark and Vauxhall Water Company v Quick: CA 1878

The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents.
Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: ‘The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk’ Brett LJ: ‘. . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained ‘at the instance’ or ‘at the request’ of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into ‘merely for the purpose of being laid before the solicitor for his advice or for his consideration”.

Judges:

Cockburn CJ and Brett LJ

Citations:

(1878) 3 QBD 315

Jurisdiction:

England and Wales

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180867

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The “Saudi Eagle”: CA 1986

The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend.
Held: When comparing the test to be met by a defendant which required there to be ‘an arguable case’, with the standard laid down in Evans in respect of a defendant seeking to set aside a regular judgment signed in default, the Evans case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. It must be more than merely arguable.
Sir Roger Ormrod: ‘. . . a defendant who is asking the Court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. (In Evans v. Bartlam there was an obvious defence under the Gaming Act and in Vann v. Awford a reasonable prospect of reducing the quantum of the claim.) Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff’s assertion that there is no defence) were the same as that required to displace a regular judgment of the Court and with it the rights acquired by the plaintiff. In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The ‘arguable’ defence must carry some degree of conviction.’

Judges:

Sir Roger Ormrod

Citations:

[1986] 2 Lloyds Rep 221

Statutes:

Rules of the Supreme Court Order 14

Jurisdiction:

England and Wales

Cited by:

Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Anglo American Investments Limited v Barber CA 22-Jul-1998
The defendant had borrowed money from the plaintiff, and a director made an oral promiose not to seek repayment until the defendant could afford it. The claimant went into liquidation.
Held: The defence was incredible and had no prospect of . .
Cited – Dipcon Engineering Services Ltd v Bowen and Another PC 1-Apr-2004
PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) . .
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 – Bryan, Astley, Taylor v Barton and Frank Barton Services Limited CA 11-Feb-1997
The defendant sought leave to appeal against an order disallowing his use of a stretch of the River Wye for his boat which he wanted to use as a floating restaurant. The claimants were an angling association who claimed that his use infringed a deed . .
Cited – Collier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
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.

Litigation Practice

Updated: 27 April 2022; Ref: scu.180850

Bray v Ford: HL 1896

An appellate court’s power to order a new trial is conditional on ‘some substantial wrong or miscarriage’ being established.
Lord Hershell said: ‘It is an inflexible rule of the court of equity that a person in a fiduciary position, such as the plaintiff’s, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services.’
Lord Halsbury LC: What ws required was something sufficiently serious to render the decision of the jury unsafe amounting to ‘a substantial wrong’ in which ‘the defendant was not permitted to present his case to the jury with the argument that his original complaint was true’.
Lord Herschell discussed the approach to damages in defamation cases: ‘The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at andpound;500 or andpound;1,000.’

Judges:

Lord Herschell, Lord Halsbury LC

Citations:

[1895-99] All ER Rep 1011, [1896] AC 44

Jurisdiction:

England and Wales

Cited by:

Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – White v White CA 21-Jun-2001
A family had occupied a council house. They purchased the property under the right to buy scheme, with financial assistance from a son, who having paid the mortgage was to allow his parents to live in the house, but then it was to become his. The . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Cairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Litigation Practice, Damages, Defamation

Updated: 27 April 2022; Ref: scu.180411

Thomas v Smalling: ChD 24 Nov 2020

Application for permission to appeal an order which dismissed the appellant’s applications for relief from sanctions and permission to amend her defence and counterclaim, refused her application for an adjournment of the trial and dismissed her application for summary judgment in respect of the claimant’s claim.

Judges:

Mr Justice Trower

Citations:

[2020] EWHC 3186 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Landlord and Tenant

Updated: 27 April 2022; Ref: scu.656323

Fletcher v Bealey: ChD 27 Jan 1885

The court was asked to grant an injunction quia timet. Pearson J said: ‘it is not correct to say, as a strict proposition of law, that, if the plaintiff has not sustained, or cannot prove that he has sustained, substantial damage, this Court will give no relief; because, of course, if it could be proved that the plaintiff was certainly about to sustain very substantial damage by what the defendant was doing, and there was no doubt about it, this Court would at once stop the defendant, and would not wait until the substantial damage had been sustained. But in nuisance of this particular kind, it is known by experience that unless substantial damage has actually been sustained, it is impossible to be certain that substantial damage ever will be sustained, and, therefore, with reference to this particular description of nuisance, it becomes practically correct to lay down the principle, that, unless substantial damage is proved to have been sustained, this Court will not interfere. I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet action.’

Judges:

Pearson J

Citations:

(1885) 28 Ch D 688, [1885] UKLawRpCh 24

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Cited – Vastint Leeds Bv v Persons Unknown ChD 24-Sep-2018
The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 April 2022; Ref: scu.619263

Curless v Shell International Ltd: CA 22 Oct 2019

‘The central issue on this appeal is whether the Employment Tribunal was correct to order on a preliminary hearing that two paragraphs of the disability discrimination and victimisation claim of the respondent should be struck out on the ground that they referred to respectively an email and a conversation in respect of which Shell is entitled to claim legal advice privilege’
A grant of anonymity in a lower court is not binding on the court of appeal and application must be made for a further order, and: ‘due to the importance of the principle of open justice it will usually only be in an exceptional case, established on clear and cogent grounds, that derogation from the principle of open justice (including the freedom to publish court proceedings) will be justified; and, in such a case, the derogation must be no more than strictly necessary to achieve its purpose. There is no general exception to open justice where privacy or confidentiality are in issue.’

Judges:

Sir Terence Etherton MR, Lord Justice Lewison and Lord Justice Bean

Citations:

[2019] EWCA Civ 1710, [2020] ICR 431, [2019] WLR(D) 578

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Nwabueze v University of Law Ltd and Others CA 13-Nov-2020
No ET Jurisdiction for Non-employment claim
The claimant appealed against rejection of her claim for discrimination which she had brought in the Employment Tribunal rather than the County Court.
Held: The appeal failed: ‘if a body is a governing body of a university this displaces its . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 27 April 2022; Ref: scu.642666

Vastint Leeds Bv v Persons Unknown: ChD 24 Sep 2018

The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The injunction was granted.
Marcus Smith J extracted the following propositions:
(1) A distinction is drawn between final mandatory and final prohibitory quia timet injunctions. Because the former oblige the defendant to do something, whilst the latter merely oblige the defendant not to interfere with the claimant’s rights, it is harder to persuade a court to grant a mandatory than a prohibitory injunction. That said, the approach to the granting of a quia timet injunction, whether mandatory or prohibitory, is essentially the same.
(2) Quia timet injunctions are granted where the breach of a claimant’s rights is threatened, but where (for some reason) the claimant’s cause of action is not complete. This may be for a number of reasons. The threatened wrong may, as here, be entirely anticipatory. On the other hand, as in Hooper v. Rogers, the cause of action may be substantially complete. In Hooper v. Rogers, an act constituting nuisance or an unlawful interference with the claimant’s land had been committed, but damage not yet sustained by the claimant but was only in prospect for the future.
(3) When considering whether to grant a quia timet injunction, the court follows a two-stage test:
(a) First, is there a strong probability that, unless restrained by injunction, the defendant will act in breach of the claimant’s rights?
(b) Secondly, if the defendant did an act in contravention of the claimant’s rights, would the harm resulting be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at the time of actual infringement of the claimant’s rights) to restrain further occurrence of the acts complained of, a remedy of damages would be inadequate?
(4) There will be multiple factors relevant to an assessment of each of these two stages, and there is some overlap between what is material to each. Beginning with the first stage – the strong possibility that there will be an infringement of the claimant’s rights – and without seeking to be comprehensive, the following factors are relevant:
(a) If the anticipated infringement of the claimant’s rights is entirely anticipatory – as here – it will be relevant to ask what other steps the claimant might take to ensure that the infringement does not occur. Here, for example, Vastint has taken considerable steps to prevent trespass; and yet, still, the threat exists.
(b) The attitude of the defendant or anticipated defendant in the case of an anticipated infringement is significant. As Spry notes,[15] ‘[o]ne of the most important indications of the defendant’s intentions is ordinarily found in his own statements and actions’.
(c) Of course, where acts that may lead to an infringement have already been committed, it may be that the defendant’s intentions are less significant than the natural and probable consequences of his or her act.
(d) The time-frame between the application for relief and the threatened infringement may be relevant. The courts often use the language of imminence, meaning that the remedy sought must not be premature.[16]
(5) Turning to the second stage, it is necessary to ask the counterfactual question: assuming no quia timet injunction, but an infringement of the claimant’s rights, how effective will a more-or-less immediate interim injunction plus damages in due course be as a remedy for that infringement? Essentially, the question is how easily the harm of the infringement can be undone by an ex post rather than an ex ante intervention, but the following other factors are material:
(a) The gravity of the anticipated harm. It seems to me that if the some of the consequences of an infringement are potentially very serious and incapable of ex post remedy, albeit only one of many types of harm capable of occurring, the seriousness of these irremediable harms is a factor that must be borne in mind.
(b) The distinction between mandatory and prohibitory injunctions.’

Judges:

Marcus Smith J

Citations:

[2018] EWHC 2456 (Ch, [2019] 4 WLR 2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Fletcher v Bealey ChD 27-Jan-1885
The court was asked to grant an injunction quia timet. Pearson J said: ‘it is not correct to say, as a strict proposition of law, that, if the plaintiff has not sustained, or cannot prove that he has sustained, substantial damage, this Court will . .
Cited – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Cited – Hooper v Rogers CA 1974
When considering a request for a quia timet injunction, Russell LJ said: ‘In different cases, differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted. In truth, it seems . .
Cited – Lloyd v Symonds, Anderson and Lucas CA 20-Mar-1998
Appeal against injunction in nuisance to stop keeping breeding kennels. The neighbour had begun keeping the kennels, and the neighbour complained to the local Environmental Health office. Abatement notices were served, and the neighbour respondent . .
Cited – Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites ChD 2003
The court granted an interlocutory injunction to restrain unknown trespassers from entering land.
The Vice-Chancellor gave the following guidance : (1) First, that the description of the defendant should not involve a legal conclusion, such as . .
Cited – Ineos Upstream Ltd and Others v Persons Unknown and Others ChD 23-Nov-2017
The claimant sought an injunction expressed to be against unknown persons.
Held: Morgan J expressed a degree of concern about orders having this effect, but concluded that (particularly in light of the South Cambridgeshire decision) this . .
Cited – South Cambridgeshire District Council v Gammell CA 2005
The Council had taken out an injunction under section 187B of the 1990 Act to prevent unknown persons placing caravans on certain lands. The defendants acted in breach of those injunctions, and the Council requested their committal for contempt. The . .
Cited – London Borough of Islington v Elliott and Another CA 1-Feb-2012
The appellant challenged a costs order. It owned property on which grew certain trees. A neighbour complained of the incursion of roots, and began an action. The Council, having removed the trees said that it should not have been ordered to pay the . .
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 27 April 2022; Ref: scu.625509

Clippens Oil Co Ltd v Edinburgh and District Water Trustees: HL 11 Jun 1907

An interim interdict having been granted upon a Note of suspension and interdict, and the Note having been passed, such interdict subsists until the Note is finally disposed of, i.e., until the Lord Ordinary has pronounced an interlocutor disposing of the Note and the days for reclaiming thereagainst have expired without a reclaiming note being taken, or if a reclaiming note be taken thereagainst, until the Inner House has pronounced judgment upon such reclaiming note.
Where the Court of Session, without setting forth the way in which the figure has been arrived at, has awarded a sum as damages for wrongous interdict, and it does not appear that any wrong principle of law has been applied to the facts of the case, the House of Lords will treat the matter as a jury question and will not disturb the award save on some very strong ground.
Per Lord Collins-‘In my opinion the wrongdoer must take his victim talem qualem, and if the position of the latter is aggravated because he is without the means of mitigating it, so much the worse for the wrongdoer, who has got to be answerable for the consequences flowing from his tortious act. On the other hand the victim, being in fact a poor man, is not entitled to claim damages in respect of lost opportunities which he could not have utilised unless he had been rich.
‘I think the wrongdoer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after events that another course might have saved loss. The loss he has to pay for is that which has actually followed under such circumstances upon his wrong.
I am at a loss to see what bearing’ malice in obtaining the interdict ‘has on the actual facts of this case. It is not essential to the cause of action, which rests on the grant of the interdict on caution, and therefore I think it is not a case for exemplary or punitive as distinguished from compensatory damages.

Judges:

Lord Chancellor (Loreburn), Lord Ashbourne, Lord James of Hereford, Lord Robertson, and Lord Collins

Citations:

[1907] UKHL 669, 44 SLR 669

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 27 April 2022; Ref: scu.622295

Nicolson v Piper: HL 18 Jun 1907

By an agreement duly recorded under the Workmen’s Compensation Act 1897, between an injured workman (appellant), and his employer (respondent), the latter agreed to pay the former a certain sum weekly as compensation during incapacity, or until the weekly payment should be ended, diminished, increased, or redeemed under the Act. Subsequently, in an arbitration at the instance of the employer for the review and termination of the weekly payments, on the ground that the injured man’s incapacity had ceased, the County Court Judge pronounced an order that the agreement ‘be this day terminated, and that the weekly payments to the workman thereunder be ended accordingly.’ At a later period the injured man again became incapable, and in his turn demanded an arbitration for the review and increase of the weekly payment under Schedule 1, section 12.
Held (affirming a judgment of the Court of Appeal) that the application was incompetent, there being no longer any weekly payment in existence capable of being reviewed, the whole matter having been finally terminated by the Judge’s order.

Judges:

Earl of Halsbury, Lords James of Hereford, Robertson, and Atkinson

Citations:

[1907] UKHL 620

Links:

Bailii

Statutes:

Workmen’s Compensation Act 1897

Jurisdiction:

England and Wales

Litigation Practice

Updated: 27 April 2022; Ref: scu.622296

Neilson v R B Wilson and Co: HL 13 May 1907

Form of joint-petition to the House of Lords by the parties in a cause under appeal which is ruled by a decision in another cause given subsequent to the taking of the appeal.

Judges:

Earl of Halsbury, Lord James of Hereford, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 633 – 1, 44 SLR 633 – 1

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 27 April 2022; Ref: scu.622292

Kliers v Schmerler and Another: ChD 30 Apr 2018

First defendant’s submission, made on his behalf by his solicitor, that he should be entitled to cross-examine the claimant and to make further submissions despite the fact that he has been debarred from defending.

Citations:

[2018] EWHC 1350 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 April 2022; Ref: scu.621135

Jones v Great Central Railway Co: HL 2 Apr 1909

By the rules of a trade union its members were entitled to legal assistance in case of unjust dismissal from their employment. The. appellant was a member who had been dismissed from the employment of the railway company. He corresponded with the secretary of the trade union in order to satisfy the union that a solicitor should be employed. In the appellant’s action against the railway company the defenders sought to have the correspondence produced.
Held that the letters were not protected by confidentiality and must be produced.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, and Shaw.)

Citations:

[1909] UKHL 1039, 46 SLR 1039

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620575

Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd and Others: TCC 15 Jun 2018

Contested applications to amend and strike out pleadings. They raise the issue whether, and in what circumstances, the court should exercise any discretion to grant declaratory relief determining the performance required to satisfy a party’s obligations under a commercial agreement.

Citations:

[2018] EWHC 1494 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620128

TPE v Franks: QBD 10 Jul 2018

The claimant had had judgment in his personal injury claim entered in default of a defence. The defendant applied to set it aside as prima facie defeated by limitation. His application was rejected on the basis that since had had admitted the offence alleged, the limitation period would be extended allowing the claim to succeed.
Held: The defendant’s appeal succeeded. There was no particular requirement as to when a limitation defence might be raised and considered. The prima facie existence of a section 33 defence would not always be determinative in setting aside a default judgment. The onus lay on the claimant to establish that it would be equitable under section 33 to set aside the limit set by section 11. That onus might be heavy, requiring particular justification for why the claim was brought out of time.

Judges:

Julian Knowles J

Citations:

[2018] EWHC 1765 (QB), [2018] WLR(D) 433

Links:

Bailii, WLRD

Statutes:

Civil Procedure Ruls 13.3, Limitation Act 1980

Jurisdiction:

England and Wales

Limitation, Litigation Practice

Updated: 25 April 2022; Ref: scu.620090

PJSC Commercial Bank Privatbank v Kolomoisky and Others: ChD 24 Jul 2018

The court was asked whether various payments made by the First Defendant (‘the respondent’) or corporate bodies that he controls required the prior consent of the Claimant (‘the applicant’) or permission from the Court, or alternatively fell with the scope of the ‘ordinary and proper course of business’ exception to the freezing order that has been made against the respondent.

Judges:

Fancourt J

Citations:

[2018] EWHC 1910 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620097

Graigola Merthyr Co Ltd v Swansea Corporation: HL 1929

The Act of 1893 provided that a successful defendant should be entitled to costs as between solicitor and client in an action in respect of ‘any act done in the pursuance, or execution, or intended execution of any Act of Parliament or of any public duty or authority’
Held: This applied also to a quia timet action, where the action of the defendant, was anticipated but has not been actually completed.

Citations:

[1929] AC 344, (1929) 26 LJ Ch 233, (1929) 140 LT 505, (1929) 93 JP 121, (1929) 45 TLR 219, (1929) 73 Sol Jo 109, (1929) 27 LGR 243

Statutes:

Public Authorities Protection Act 1893

Jurisdiction:

England and Wales

Citing:

See Also – Graigola Merthyr Co Ltd v Swansea Corporation (No 2) 1928
The plaintiffs owned two collieries, worked as one. The defendant owned an adjacent reservoir, constructed in pursuance of a special Act, incorporating sections from the Waterworks Clauses Act 1847. Wanting to take their seams under the reservoir, . .
Appeal from – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Earlier Proceedings – Graigola Merthyr Co Ltd v Swansea Corporation 1926
In cases involving expert evidence only two experts are to be heard on each side, unless the judge is satisfied that by reason of special circumstances justice cannot be done without hearing further expert evidence. This rule does not exclude either . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 25 April 2022; Ref: scu.619993

Graigola Merthyr Co Ltd v Swansea Corporation: 1926

In cases involving expert evidence only two experts are to be heard on each side, unless the judge is satisfied that by reason of special circumstances justice cannot be done without hearing further expert evidence. This rule does not exclude either side from calling anyone to speak to matters he has seen, even though an expert, but in such cases the examination must be confined to matters of fact, and such person must not be treated as an expert witness.
‘Preventing justice excelleth punishing justice’

Judges:

Tomlin J

Citations:

(1926) 71 Sol Jo 142

Jurisdiction:

England and Wales

Cited by:

First Proceedings – Graigola Merthyr Co Ltd v Swansea Corporation (No 2) 1928
The plaintiffs owned two collieries, worked as one. The defendant owned an adjacent reservoir, constructed in pursuance of a special Act, incorporating sections from the Waterworks Clauses Act 1847. Wanting to take their seams under the reservoir, . .
Earlier proceedings – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Earlier Proceedings – Graigola Merthyr Co Ltd v Swansea Corporation HL 1929
The Act of 1893 provided that a successful defendant should be entitled to costs as between solicitor and client in an action in respect of ‘any act done in the pursuance, or execution, or intended execution of any Act of Parliament or of any public . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 25 April 2022; Ref: scu.619994

Personal Management Solutions Ltd and Another v Brake Bros Ltd and Others: CA 12 Jul 2018

Interlocutory appeal raising the question whether successful claimants who have obtained a judgment on liability can ‘expand’ their claim on an assessment of damages.

Citations:

[2018] EWCA Civ 1635

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.619395

Hooper v Rogers: CA 1974

When considering a request for a quia timet injunction, Russell LJ said: ‘In different cases, differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted. In truth, it seems to me that the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances.’
What matters is the probability and likely gravity of damage rather than simply its imminence.

Judges:

Russell, Stamp and Scarman LJJ

Citations:

[1973] 1 Ch 43

Jurisdiction:

England and Wales

Cited by:

Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Cited – Vastint Leeds Bv v Persons Unknown ChD 24-Sep-2018
The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 25 April 2022; Ref: scu.619380

Graigola Merthyr Co Ltd v Swansea Corporation (No 2): 1928

The plaintiffs owned two collieries, worked as one. The defendant owned an adjacent reservoir, constructed in pursuance of a special Act, incorporating sections from the Waterworks Clauses Act 1847. Wanting to take their seams under the reservoir, the plaintiffs reached and agreement to do so, with the defendants agreeing not to fill the reservoir while the plaintiffs works their seams and for three years after. The minerals under the reservoir having been worked out, it was agreed that the three year period should begin from a certain date. At the end of that three years, the defendant’s having expressed their intention of refilling the reservoir, the plaintiffs began an action alleging that such contemplated action would seriously imperil their mines by flooding, and sought an injunction. The defendant objected that, having regards to the 1847 Act, could not be sustained.
Held: Section 27 of the Act left undertakers liable to all legal proceedings which before the Act had been open to others, for protection against damage or injury arising from the work actual or threatened; and, although the action was a quia timet action, an objection could not be sustained and the actions would lie.
Tomlin J considered the duties of an expert witness: ‘long cases produce evils . . In every case of this kind there are generally many ‘irreducible and stubborn facts’ upon which agreement between experts should be possible and in my judgment the expert advisers of the parties, whether legal or scientific, are under a special duty to the court in the preparation of such a case to limit in every possible way the contentious matters of fact to be dealt with at the hearing. That is a duty which exists notwithstanding that it may not always be easy to discharge.’ In such cases those concerned with the preparation of cases should more closely address their minds to restricting the areas of dispute.

Judges:

Tomlin J

Citations:

[1928] 1 Ch 31

Statutes:

Waterworks Clauses Act 1847

Jurisdiction:

England and Wales

Citing:

First Proceedings – Graigola Merthyr Co Ltd v Swansea Corporation 1926
In cases involving expert evidence only two experts are to be heard on each side, unless the judge is satisfied that by reason of special circumstances justice cannot be done without hearing further expert evidence. This rule does not exclude either . .

Cited by:

Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Appeal from – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
See Also – Graigola Merthyr Co Ltd v Swansea Corporation HL 1929
The Act of 1893 provided that a successful defendant should be entitled to costs as between solicitor and client in an action in respect of ‘any act done in the pursuance, or execution, or intended execution of any Act of Parliament or of any public . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 25 April 2022; Ref: scu.619264

Glaxo Wellcome Uk Ltd (T/A Allen and Hanburys) and Another v Sandoz Ltd and Others: ChD 12 Jun 2018

Application made by the claimants seeking orders concerning the defendants’ disclosure and relating to a notice to admit served by the claimants.

Judges:

Marsh CM

Citations:

[2018] EWHC 1626 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Intellectual Property

Updated: 24 April 2022; Ref: scu.618979

Tuson v Murphy: CA 22 Jun 2018

The claimant won her personal injury case, but appealed from an order to pay the defendant’s costs after she had failed to declare her attempt to begin a business.
Held: The Claimant’s modest attempts to run a playgroup did not amount to evidence that the Claimant’s disability was fabricated. The defendant’s offer had been a straightforward Part 36 offer made with full knowledge of the facts complained of. The judge’s order was flawed, and the appeal succeeded.

Citations:

[2018] EWCA Civ 1461

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 24 April 2022; Ref: scu.618836

Regina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte M S: CA 3 Jul 1997

The hospital authorities applied ex parte and were granted a declaration which dispensed with the applicant’s consent to medical treatment.
Held: Her appeal was allowed. A declaration (especially one affecting an individual’s personal autonomy) ought not to be made on an ex parte basis, not least because it would be ineffective to achieve its purpose of protecting the doctor or doctors who administered the treatment from claims. This was an order which the applicant ‘is entitled to have set aside ex debito justitiae. That may involve some unfairness to the doctors and nurses at St George’s . . But the unfairness (indeed injustice) to MS would be much greater if the order were not set aside.’

Citations:

[1997] EWCA Civ 2019

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte S Admn 18-Feb-1997
An application was to be made to challenge a decision to sterilise a young woman in the care of the health authority.
Held: The application was in the nature of a request for judicial review. As such a judge in the administrative division was . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
See Also – Regina v Collins; Pathfinder Mental Health Services NHS Trust and St George’s Health Care NHS Trust ex parte ‘S’ Admn 17-Mar-1997
The applicant sought to challenge a decision that she should be sterilised, and detained as a mental patient for this purpose. . .

Cited by:

Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
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.

Health, Litigation Practice

Updated: 24 April 2022; Ref: scu.142416