Category: Litigation Practice

Personal Management Solutions Ltd and Another v GEE 7 Group Ltd and Another: ChD 10 Dec 2015

Appeal against order for pre-action disclosure

Morgan J
[2015] EWHC 3859 (Ch)
Bailii
England and Wales
Cited by:
See Also – Personal Management Solutions Ltd and Another v GEE 7 Group Ltd and Another (Costs) ChD 10-Dec-2015
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.560293

Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb: SC 9 Oct 2020

After a fire in a power plant in Russia, Chubb Russia, the insurers brought proceedings in Russia against Enka, a subcontractor, alleging liability for the fire. Enka began proceedings in England contending that the dispute was subject to an arbitration agreement in the contract under which it had performed the works, and seeking an order that Chubb Russia discontinue the Russian Proceedings (‘an anti-suit injunction’).
Enka’s claim was dismissed by the High Court at first instance at an expedited trial. The Court of Appeal subsequently allowed Enka’s appeal, granting an anti-suit injunction and restraining Chubb Russia from appealing the decision of the Russian court. Chubb Russia seeks to appeal.

Bailii Press Summary, Bailii, Bailii Summary
England and Wales
Citing:
At ComC – Enka Insaat Ve Sanayi As v Ooo ‘Insurance Company Chubb’ and Others ComC 20-Dec-2019
Anti-suit injunction to restrain foreign proceedings said to be in breach of agreement to refer disputes to ICC arbitration with London seat.
Held: Refused . .
Appeal from – Enka Insaat Ve Sanayi As v OOO ‘Insurance Company Chubb’ and Others CA 29-Apr-2020
Appeal against a decision at trial not to grant an anti-suit injunction against a party alleged to be in breach of a London arbitration clause by bringing proceedings in Russia. It concerns the significance to be attached to the choice of London as . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, International

Updated: 10 January 2022; Ref: scu.654664

Caine v Advertiser and Times Ltd and Another: QBD 14 Jan 2019

Appeal against an order staying permanently the claim for libel, raising a point about the procedure by which a defendant should challenge a failure to serve proceedings in time.

Dingemans J
[2019] EWHC 39 (QB)
Bailii
England and Wales
Citing:
Cited – Hoddinott and others v Persimmon Homes (Wessex) Ltd CA 21-Nov-2007
The claimant had issued proceedings and the defendant filed an acknowledgement, and then argued that the court had no jurisdiction. The claimant appealed against an order declining jurisdiction.
Held: Where a party filed an acknowledgement, . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 10 January 2022; Ref: scu.632717

Sheikh Abdulrahman Khalid Bin Mahfouz v Sheikh Sultan Bin Mahfouz and Another: ComC 25 May 2016

Where the defendant to a claim for money puts forward a defence which has a real prospect of success, he is entitled to have the merits of the claim and of that defence decided at a trial. Where, however, it is entirely plain on evidence before the court that the defence put forward is entirely without substance and is fanciful, it is unnecessary to have a trial of the proceedings and the claimant is entitled to summary judgment on his claim.

Leggatt J
[2016] EWHC 1380 (Comm)
Bailii
England and Wales

Litigation Practice

Updated: 10 January 2022; Ref: scu.565733

CMOC v Persons Unknown: ComC 23 Oct 2017

Application for worldwide freezing relief against persons unknown.

[2017] EWHC 3599 (Comm)
Bailii
England and Wales
Cited by:
See Also – CMOC Sales and Marketing Ltd v Person(s) Unknown and Others ComC 17-Nov-2017
Continuation of existing injunctive relief . .
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.606386

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 and unknown person.
Held: The court was able to make the order sought against persons unknown. There were valid distinctions between different classifications of such persons, but the requirement was that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.
Following the introduction of the CPR, there was no requirement that a defendant must be named in proceedings against him/her/it, but merely a direction that the defendant should be named (if possible): ‘The crucial point, as it seems to me, is that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not seem to me to matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.’

The Vice-Chancellor, Sir Andrew Morritt
[2003] EWHC 1205 (Ch), Gazette 17-Jul-2003, Times 05-Jun-2003, [2003] 1 WLR 1633
Bailii
England and Wales
Citing:
Distiunguished – Friern Barnet UDC v Adams CA 1927
The plaintiff sought the cost of certain streetworks from the relevant frontagers. They did not know their names and issued a writ against ‘the owners of’ certain land clearly identified by name. It was pointed out that only owners of that land at . .
Cited – In Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .
Cited – McPhail v Persons, Names Unknown CA 1973
The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court . .
Cited – EMI Recurds v Kudhail CA 1985
An order was sought against the defendasnt and unnamed defendants involved in copyright piracy.
Held: The court was prepared to make an order against the named defendant on his own behalf and as representing all other persons engaged in the . .
Cited – Barnett v French CA 1981
The court considered how defendants should be named in court proceedings where their identity was unknown. . .
Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .
Cited – Attorney-General v Times Newspapers Ltd HL 1991
Injunctions had been granted to preserve the status quo in proceedings brought to prevent the publication of the book ‘Spycatcher’. The defendants published extracts, and now appealed a finding that they had acted in contempt.
Held: The . .
Cited – Acrow (Automation) Ltd v Rex Chainbelt Inc 1971
A person not party to proceedings, but who knows of an order made in them, and assists in its breach or nullifies the purpose of a trial may be liable for contempt. . .

Cited by:
Cited – South Cambridgeshire District Council v Persons Unknown CA 17-Sep-2004
The council appealed refusal of an order against persons unknown with regard to preventing breaches of planning control at a specific site.
Held: An injunction could properly be granted against persons unknown ‘causing or permitting hardcore . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – Brett Wilson Llp v Person(s) Unknown, Responsible for The Operation and Publication of The Website www.solicitorsfromhelluk.com QBD 16-Sep-2015
The claimant solicitors sought remedies against the unknown publishers of the respondent website which was said to publish material defamatory of them, and to ampunt to harassment.
Held: The alleged defamatory meanings were not challenged by . .
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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 10 January 2022; Ref: scu.183358

EMI Recurds v Kudhail: CA 1985

An order was sought against the defendasnt and unnamed defendants involved in copyright piracy.
Held: The court was prepared to make an order against the named defendant on his own behalf and as representing all other persons engaged in the activity of which complaint is made. The common link afforded by that activity and the common interest in wishing to remain anonymous is sufficient to justify the order: ‘there was sufficient commercial interaction between counterfeiters to treat them all as a group’.

[1985] FSR 36
England and Wales
Cited by:
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 . .
Cited – Bloomsbury Publishing Plc and Another v Newsgroup Newspapers Ltd ChD 7-May-2003
The claimant sought an order to restrict the defendant and other unknown defendants from publishing confidential details of the book it was about to publish from the Harry Potter series.
Held: Whilst: ‘I think it would be preferable for 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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 10 January 2022; Ref: scu.183363

Gurtner v Circuit: CA 1968

The Court described the gap in provision for the recovery of damages for injury where the driver of a vehicle was uninsured: ‘if (a) the defendant was not insured at the time of the accident or (b) his policy of insurance was avoided in the circumstances specified in section 10(3) of the Road Traffic Act 1934 for non-disclosure or misrepresentation or (c) his insurer too was insolvent. To fill this gap the insurers transacting compulsory motor vehicle insurance business in Great Britain, acting in agreement with the Minister of Transport, formed a company, the Motor Insurers’ Bureau, to assume liability to satisfy judgments of these three kinds. But instead of amending the legislation so as to impose upon the Motor Insurers’ Bureau a statutory liability to the unsatisfied judgment creditor as had been done by the Road Traffic Act, 1934, in respect of the liability of insurers to satisfy judgments against defendants covered by a valid policy of insurance, the matter was dealt with by an agreement of June 17, 1946, between the Minister of Transport and the Motor Insurers’ Bureau. To this contract, for that is all that it is in law, no unsatisfied judgment creditor is a party. Although clearly intended by both parties to be for the benefit of such creditors, the Minister did not enter into it otherwise than as a principal. He was not purporting to act as agent so as to make it capable in law of ratification by those whom it was intended to benefit. Many of them were not born at the time when it was made. The only person entitled to enforce the contract is the Minister. I do not doubt that upon the principle accepted by the House of Lords in Beswick v Beswick [1968] AC 58 the Minister could enforce it by obtaining a judgment for specific performance which, once obtained, could be enforced against the bureau by the unsatisfied judgment creditor in whose favour the order for specific performance was made. But the Minister is the only party entitled to bring an action to enforce the contract. It confers no right of action against the Motor Insurers’ Bureau upon any unsatisfied judgment creditor.’
Diplock LJ: ‘A matter in dispute is not in my view effectually and completely adjudicated upon unless the rules of natural justice are observed and all those it will be liable to satisfy the judgment are given an opportunity to be heard.’

Diplock LJ
[1968] 2 QB 587
Road Traffic Act 1934 810(3)
England and Wales
Citing:
Disapproved – Amon v Raphael Tuck and Sons Ltd 1956
The court analysed the circumstances under which additional parties might be joined to an action by a defendant, applying a narrow interpretation. The court considered whether a defendant may be added against the parties’ wishes: ‘There are two . .

Cited by:
Cited – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Road Traffic, Insurance

Updated: 10 January 2022; Ref: scu.200494

Porter v Freudenberg: CA 1915

A British citizen or neutral who is voluntarily resident in the enemy country is to be treated as an alien enemy when the question is asked as to his entitlement to bring proceedings in England.
An order for substituted service, which is as effective to constitute the proceedings, though there has not been personal service, will, if properly effected according to the terms of the order for it, be deemed to be personal service if, when personal service is a ‘practical impossibility’, the method of service is ‘one which will in all reasonable probability, if not certainty, be effective to having knowledge of the writ . . to the defendant’

Lord Reading CJ
[1915] 1 KB 857, [1914-15] All ER 918
England and Wales
Cited by:
Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.230002

Friern Barnet UDC v Adams: CA 1927

The plaintiff sought the cost of certain streetworks from the relevant frontagers. They did not know their names and issued a writ against ‘the owners of’ certain land clearly identified by name. It was pointed out that only owners of that land at the date of the completion of the works could be liable. In order to cover that point the plaintiff sought to amend the description by adding ‘at the time of the completion of the works.
Held: Leave to amend was properly refused. A writ cannot be issued in the terms proposed referring to the parties sought to be summoned in this vague way. The procedure established by the Act necessarily implies even if it does not expressly state that it is necessary to an action that the defendants should be named. The writ, in not naming the defendants, but merely describing them as the owners of adjoining property, is bad. The plaintiffs do not know, and the writ does not state, whether any one of the defendants is a lunatic, or an infant, or is residing abroad, or is under any kind of disability, in each of which cases some special directions or some special procedure might be required

Lord Hanworth MR
[1927] 2 Ch 25
Judicature Act 1873
England and Wales
Cited by:
Distiunguished – 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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.183360

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 is implicit in the use of the word ‘trespass’.
(2) Secondly, that it is undesirable to use a description such as ‘intending to trespass’, because that depends on the subjective intention of the individual which is not necessarily known to the outside world, and in particular the claimant, and is susceptible of change’.

Sir Andrew Morritt V-C
[2003] EWHC 1738 (Ch), [2003] 42 EG 126, [2004] Env LR 9
Bailii
England and Wales
Cited by:
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 10 January 2022; Ref: scu.381711

LS v PS: FD 23 Dec 2021

Application by an intervener in financial remedy proceedings for disclosure of material and information which is currently subject to ‘without prejudice’ privilege. The intervener, Q, is a corporate entity which provides litigation funding to parties involved in family and probate proceedings. It has lent funds to LS, the applicant wife in these financial remedy proceedings. Her debt to Q with accrued interest currently stands at almost pounds 1 million. For these purposes the precise figure matters not although it represents a significant debt in the context of the financial remedy case which was agreed to be informed by an assessment of the wife’s needs as opposed to a full sharing claim.

The Honourable Mrs Justice Roberts
[2021] EWHC 3508 (Fam)
Bailii
England and Wales

Family, Litigation Practice

Updated: 10 January 2022; Ref: scu.670695

Clarke v Vedel: CA 1979

A person had stolen a motor cycle, collided with the plaintiffs, given a fictitious name and address and then disappeared. He was sued under the fictitious name he had given, and an application was made for substituted service on the Motor Insurance Bureau. The affidavit in support understandably failed to state that that mode of service could be expected to reach the driver.
Held: The Court proceeded on the assumption that there was ‘no more reason to suppose that [the writ] will come to his notice or knowledge by being served on the Motor Insurance Bureau than by being served on any one else in the wide world.’
Stephenson LJ considered, on the strength of the dicta in Murfin v Ashbridge and Gurtner v Circuit , that: ‘there may be cases where a defendant, who cannot be traced and, therefore, is unlikely to be reached by any form of substituted service, can nevertheless be ordered to be served at the address of insurers or the Bureau in a road accident case. The existence of insurers and of the Bureau and of these various agreements does create a special position which enables a plaintiff to avoid the strictness of the general rule and obtain such an order for substituted service in some cases.’ but held that ‘This is a case in which, on the face of it, substituted service under the rule is not permissible and the affidavit supporting the application for it is insufficient. This fictitious, or, at any rate, partly fictitious defendant cannot be served, so Mr Crowther is right in saying that he cannot be sued . . I do not think that Lord Denning MR or Diplock LJ or Salmon LJ or Goddard LJ had anything like the facts of this case in mind; and whatever the cases in which the exception to the general rule should be applied, in my judgment this is not one of them.’
Concurring, Roskill LJ approved the statement in the then current edition of the Supreme Court Practice that ‘[t]he steps which the court may direct in making an order for substituted service must be taken to bring the document to the notice of the person to be served,’ citing Porter v Freudenberg in support of it.

[1979] RTR 26
England and Wales
Cited by:
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.670956

Murfin v Ashbridge: CA 1941

A road accident was caused by the alleged negligence of a driver who was identified but could not be found.
Held: While an insurer may be authorised by the policy to defend an action on behalf of his assured, he was not a party in that capacity and could not take any step in his own name. In the course of considering that point, Goddard LJ suggested that ‘possibly’ service on the driver might have been effected by substituted service on the insurers.

Goddard LJ
[1941] 1 All ER 231
England and Wales
Cited by:
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. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 January 2022; Ref: scu.670957

Kirk, Regina (on The Application of) v Cardiff Crown Court and Others: Admn 21 Jan 2015

Leave to bring judicial review was granted of a decision by a judge to ban a member of the public taking notes of open court proceedings in contravention of a direct order from the judge.

Gilbart J
[2015] EWHC 897 (Admin)
Bailii
England and Wales
Cited by:
Leave – Ewing v Crown Court Sitting at Cardiff and Newport and Others Admn 8-Feb-2016
The court granted judicial review of a decision to prevent the applicant taking notes from the public gallery of the court. The general rule of openness must apply, and though particular exceptional circumstances might allow the making of such an . .

Lists of cited by and citing cases may be incomplete.

Administrative, Litigation Practice

Updated: 10 January 2022; Ref: scu.559678

Ewing v Crown Court Sitting at Cardiff and Newport and Others: Admn 8 Feb 2016

The court granted judicial review of a decision to prevent the applicant taking notes from the public gallery of the court. The general rule of openness must apply, and though particular exceptional circumstances might allow the making of such an order, no such circumstances applied in this case

Burnett LJ, Sweeney J
[2016] EWHC 183 (Admin), [2016] WLR(D) 62
Bailii, WLRD
England and Wales
Citing:
Leave – Kirk, Regina (on The Application of) v Cardiff Crown Court and Others Admn 21-Jan-2015
Leave to bring judicial review was granted of a decision by a judge to ban a member of the public taking notes of open court proceedings in contravention of a direct order from the judge. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court, Administrative

Updated: 10 January 2022; Ref: scu.559673

Camdex International Ltd v Bank of Zambia and Another: CA 22 May 1996

Application by the defendant for leave to appeal and, should leave be granted, an appeal

Sir Thomas Bingham MR, Aldous, Phillips LJJ
[1996] EWCA Civ 1357
Bailii
England and Wales
Citing:
See Also – Camdex International Ltd v Bank of Zambia and Another CA 3-Apr-1996
Appeal by the Defendant from a judgment on an application for summary judgment under RSC Order 14 by the Plaintiffs, Camdex International Ltd judgment was entered for the Plaintiffs in the sum of Kuwaiti Dinars 20,595,557.429. The Plaintiffs pleaded . .

Cited by:
See Also – Camdex International Ltd v Bank of Zambia and Others (2) CA 28-Jan-1997
English Courts have no power to enforce foreign public law here. . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 January 2022; Ref: scu.559148

Ogelegbanwei and 52 Others v President of The Federal Republic of Republic of Nigeria and Others: QBD 18 Jan 2016

Application by the claimants for registration of a judgment given in their favour on the 5th December 2013 by the Asaba Judicial Division of the Federal High Court of Nigeria.

Holdroyde J
[2016] EWHC 8 (QB)
Bailii
England and Wales

International, Litigation Practice

Updated: 09 January 2022; Ref: scu.558929

Various Claimants v Mcalpine and Others: QBD 15 Jan 2016

Reasons for rejection of application for reliance upon expert evidence.

Supperstone J, Lester M
[2016] EWHC 45 (QB)
Bailii
England and Wales
Citing:
See Also – Various Claimants v McAlpine and Others QBD 4-Dec-2015
Setting of costs budgets under a Group Litigation Order . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 January 2022; Ref: scu.558746

Apex Global Management and Another v Global Torch Ltd and Others: ChD 30 Oct 2013

The court rejected an application by Prince Abdulaziz for a variation of case management orders.

Mann J
[2013] EWHC 3478 (Ch)
Bailii
England and Wales
Citing:
See Also – Global Torch Ltd v Apex Global Management Ltd ChD 13-Feb-2013
Applications within unfair prejudice petitions. . .
See Also – Global Torch Ltd and Others v Apex Global Management CA 18-Apr-2013
Oral renewal of an application for permission to appeal . .
See Also – Global Torch Ltd v Apex Global Management Ltd and Others CA 10-Jul-2013
. .

Cited by:
See Also – Prince Abdulaziz v Apex Global Management Ltd and Another SC 26-Nov-2014
The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to . .
Appeal from – Prince Abdulaziz v Apex Global Management Ltd and Another SC 26-Nov-2014
The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 January 2022; Ref: scu.539321

Hysaj v Secretary of State for The Home Department: CA 16 Dec 2014

Applications for extensions of time to file an appeal should be taken the same as for applications for relief from sanctions, and should attract the same rigorous approach. There is no good reason to have a different approach for public law cases.
The fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him

Moore-Bick VP, Tomlinson, King LJJ
[2014] EWCA Civ 1633, [2014] WLR(D) 538, [2015] 2 Costs LR 191, [2015] 1 WLR 2472, [2015] CP Rep 17
Bailii, WLRD
England and Wales
Cited by:
Cited – BPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .
See Also – Hysaj and Others, Regina (On The Application of) v Secretary of State for The Home Department CA 26-Nov-2015
Each of the three applicamts having been found to have lied in order to obtain British Nationality, now appealed against a decision that they were not in fact Britsh citizens. . .
Appeal from – Hysaj and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Dec-2017
The court was asked whether the misrepresentations made by the appellants in their applications for United Kingdom citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under . .
Cited – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 January 2022; Ref: scu.539983

Power v Meloy Whittle Robinson Solicitors: CA 2 Jul 2014

The court itself had failed to effect proper service because of an administrative error.
Held: The Court rejected the submission that the claimant need not necessarily demonstrate that there was no way in which he could have effected service according to the rules within the period of validity of the claim form.

[2014] EWCA Civ 898
Bailii
England and Wales
Cited by:
Cited – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 January 2022; Ref: scu.533790

Abela and Others v Baadarani and Another: ChD 28 Jan 2011

The claimant sought damages alleging inter alia fraud by the defendant in a company sale between the parties. The defendant now sought to have set aside the service on him in Lebanon, saying that The English court was not the forum coveniens. He also said that the claim was out of time.
Held: The application was rejected. Pursuant to CPR 6.37(5)(b) and/or 6.15(2), the steps taken to bring the claim form to the attention of the respondent amounted to good service of the claim form.

Sir Edward Evans-Lombe
[2011] EWHC 116 (Ch)
Bailii
Civil Procedure Rules 6.37(5)(b) 6.1592), Limitation Act 1980 32(1)
England and Wales
Cited by:
Appeal from – Abela and Others v Baadarani CA 15-Dec-2011
The claimant alleged fraud against the defendant. The defendant now appealed against an order allowing service of the proceedings on him in Lebanon. . .
At first instance – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice, Limitation

Updated: 08 January 2022; Ref: scu.428371

Financial Reporting Council Ltd v Frasers Group Plc: ChD 8 Oct 2020

Consequential matters – permission to appeal and costs.

Nugee LJ
[2020] EWHC 2656 (Ch)
Bailii
England and Wales
Citing:
Appeal from – The Financial Reporting Council Ltd v Frasers Group Plc ChD 5-Oct-2020
‘This application raises the question whether 3 documents in the hands of the Respondent are privileged from production to the Applicant on the grounds of litigation privilege.’ . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 08 January 2022; Ref: scu.654538

Ecobank Transnational Incorporated v Tanoh: CA 17 Dec 2015

The court was asked whether Knowles J was wrong to refuse to grant Ecobank Transnational Incorporated (‘Ecobank’), an injunction restraining Mr Thierry Tanoh (‘Mr Tanoh’) from enforcing two judgments which he had obtained in Togo and Cote d’Ivoire.

Sir Terence Etherton Ch, Christopher Clarke, Patten LJJ
[2015] EWCA Civ 1309, [2015] WLR(D) 534
Bailii, WLRD
England and Wales

International, Litigation Practice

Updated: 08 January 2022; Ref: scu.557081

Kimathi and Others v Foreign and Commonwealth Office: QBD 16 Dec 2015

Stewart J
[2015] EWHC 3684 (QB)
Bailii
England and Wales
Citing:
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 26-Nov-2015
Reasns on decisions on applications for exclusion of certain witness statements . .

Cited by:
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 18-Mar-2016
Ruling in relation to Defendant’s application for an order ‘directing that the issues of double actionability and limitation be heard and determined as preliminary issues’ . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 31-Oct-2017
Third judgment in respect of amendments to the individual Particulars of Claim . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 28-Nov-2017
Application to admit contents of book into evidence. . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 08 January 2022; Ref: scu.557062

The Commissioner of Police of The Metropolis v Abdulle and Others: CA 8 Dec 2015

‘This appeal from Hickinbottom J raises, in an acute form, the width of the discretion given to a first instance judge when deciding whether or not to strike out a claim for failure to comply with procedural rules, and the grounds upon which an appeal court can or should interfere with that exercise of discretion.’

Moore-Bick, Lewison, Kitchen LJJ
[2015] EWCA Civ 1260
Bailii
England and Wales

Litigation Practice

Updated: 07 January 2022; Ref: scu.556536

BDW Trading Ltd v Fitzpatrick and Another: ChD 3 Dec 2015

Application BDW to continue a freezing injunction, and in addition to the freezing order BDW seeks disclosure orders in order to ascertain the extent of alleged wrongdoing, and to interrogate a defendant in order to enable it to trace the proceeds of the alleged wrongdoing.

Behrens HHJ
[2015] EWHC 3490 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 07 January 2022; Ref: scu.556454

Bruce v Wardlaw: SCS 15 Jan 1530

In a suspension of double-poinding raised by persons subject in payment to the party found to have best right, if the said suspension be called, and the process seen, the suspenders may not pass from the suspension, or discharge the party to compear for them, till the matter be discussed betwixt the parties called.

[1530] Mor 15138
Bailii
Scotland

Litigation Practice

Updated: 07 January 2022; Ref: scu.556379

Bonhams 1973 Ltd v Lawson and Others: CA 16 Jul 2015

Application for permission to appeal a case management decision that Mr Zanotti should serve a statement of case setting out whether he has any claim to interest in a car which has been auctioned by Bonhams and is currently sitting in a warehouse in Southampton.

Longmore LJ
[2015] EWCA Civ 1062
Bailii
England and Wales

Contract, Litigation Practice

Updated: 07 January 2022; Ref: scu.556215

Behrens v Bartram Mill Circus: QBD 1957

Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.

Devlin J
1957] 2 QB 1
England and Wales
Cited by:
Cited – Youngsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 07 January 2022; Ref: scu.581638

Regina v Bow Street Metropolitan Stipendiary Magistrate ex parte Barrett: Admn 21 Oct 1998

‘Mr Barrett is obsessed with the loss of his house and has been making wild allegations of fraud against anyone who decides anything against him in the context of that loss. He is totally unable to appreciate that his activities before the court are vexatious and are completely lacking in any merit whatever. ‘ His appeal against a strike out of his claim against judges in the Court of Appeal was struck out with a recommendation that a vexatious litigant order be considered.

[1998] EWHC Admin 992
Supreme Court Act 1981 42
England and Wales

Litigation Practice

Updated: 07 January 2022; Ref: scu.139113

Crescendo Maritime Co and Another v Bank of Communications Company Ltd and Others: ComC 25 Nov 2015

Trial of two actions. In one action an anti-suit injunction is sought in circumstances where one party to a London arbitration agreement wishes to enforce it and another party, despite having agreed to London arbitration, prefers to litigate in another country, in this case China. In the other action a declaration on non-liability in fraud is sought.

Teare J
[2015] EWHC 3364 (Comm)
Bailii
England and Wales

Torts – Other, Arbitration, Litigation Practice

Updated: 06 January 2022; Ref: scu.555035

Sir James Cunningham, of Milnecraig v Captain John Chalmer of Gadgirth, and The Earls of Loudon, and Stair, and Colonel Dalrymple: HL 24 Mar 1740

A proof taken in virtue of a diligence from the Court of Session, in the course of a submission, which came to an end without any decreet-arbitral being pronounced, admitted in the particular circumstances of the case, in a subsequent litigation between the same parties, the power of re-examining the witnesses being reserved.
The Court of Session having (by an interlocutor not appealed from) refused to make certain persons parties to a depending action,-it was found to be incompetent to call them as parties in the House of Lords, in an appeal from the final judgment in the action.

[1740] UKHL 1 – Paton – 267, (1740) 1 Paton 267
Bailii
England and Wales

Scotland, Litigation Practice

Updated: 06 January 2022; Ref: scu.554889

John, Lord Viscount of Arbuthnot and Others, Creditors of William Morison, Late of Prestongrange, Esq Deceased v John Spottiswood of Spottiswood: HL 22 Apr 1740

An extracted judgment of the Court of Session in favour of a pursuer not held to be res judicata, on the ground of its having been obtained by collusion on the part of the defender.

[1740] UKHL 1 – Paton – 284, (1740) 1 Paton 284
Bailii
Scotland

Litigation Practice

Updated: 06 January 2022; Ref: scu.554892

Ras Al Khaimah Investment Authority and Others v Bestfort Development Llp and Others: ChD 5 Nov 2015

Application for permission to appeal against the dismissal of their application for security for their costs of the proceedings and, if permission is granted, for the order below to be set aside and for an order for security for costs to be made in their favour.

David Richards J
[2015] EWHC 3197 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 06 January 2022; Ref: scu.554804

Moosun, and Others v HSBC Bank Plc (T/A First Direct): ChD 2 Nov 2015

Applications by HSBC Bank plc to strike out or for the summary determination in the bank’s favour, claims which have been brought against it and its solicitors by, amongst others, Mrs. Sabrina Shafika Moosun. As well as applications to strike out the proceedings the bank also seeks a general, alternatively, an extended civil restraint order against Mrs. Moosun.

Snowden J
[2015] EWHC 3308 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 06 January 2022; Ref: scu.554799

Property Alliance Group Ltd v The Royal Bank of Scotland Plc: ChD 20 Nov 2015

Second judgment dealing with issues of privilege.

Birss J
[2015] EWHC 3341 (Ch)
Bailii
England and Wales
Citing:
See Also – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 13-Nov-2015
PAG contended that RBS mis-sold swap contracts to PAG in the period 2004-2008. The allegations included misrepresentations relating to LIBOR. PAG also contends that in breach of contract RBS transferred PAG into RBS’s turnaround division (called the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 06 January 2022; Ref: scu.554802

Tecom Mican SL v Arias Doma-Nguez: ECJ 11 Nov 2015

Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Concept of an ‘extrajudicial document’ – Private documents – Cross-border implications – Functioning of the internal market

A Tizzano VP
C-223/14, [2015] EUECJ C-223/14, ECLI:EU:C:2015:744
Bailii
European

Litigation Practice

Updated: 06 January 2022; Ref: scu.554661

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (Costs): CA 10 Nov 2015

Challenge to order for payment of security for costs.
Christopher Clarke LJ said: ‘In the present case it seems to us that in reality it is NNPC, the Award debtor, which sought the continuance of the adjournment in the face of IPCO’s attempt to enforce the Award and bring the adjournment to an end. In its respondent’s notice NNPC said that, if the judge’s contingent exercise of his discretion was in error, he was nevertheless correct to conclude that it was appropriate to adjourn under section 103(5) so that the challenge could proceed in Nigeria inter alia because, if the court were minded to enforce the Award, it would still have to decide whether the enforcement of the award was contrary to English public policy. In other words it was relying on the possibility of a later English public policy challenge as a reason to uphold the continuance of the adjournment, ordered by consent on 17 June 2009, pending resolution of the fraud challenge in Nigeria, rather than suggesting that enforcement should only abide a section 103(3) determination.
So far as the ability of IPCO to enforce any judgment is concerned, much will depend on whether NNPC has sufficient assets in this country, or any other country in which an English judgment may be enforced, to ensure that it can swiftly receive the fruits of any judgment in its favour.
Although NNPC is a large business we have no details of its assets within such countries, or the form in which they are held, how long they have been held there, or how readily any trading arrangements might be changed so as to render enforcement difficult or impossible.
. . where there is a very large award, delay without security is inherently likely to prejudice the award creditor and certainly risks doing so. We regard that as a factor which should incline us towards providing some security to ensure that if the fraud challenge fails, IPCO will not be faced with a further round of attempts to avoid payment of the Award or a situation in which its prospects of recovery have worsened.
Another material factor is the need in a case involving such extraordinary delay, extending over a decade, to provide a strong incentive to securing finality. NNPL [sic] says that, now that the fraud challenge is to be heard in London, the prospects of excessive delay are much reduced. Hopefully so. But the history of these proceedings, and their inordinate delay, persuades us of the need to provide an incentive, indeed something of a goad, to progress.
Lastly we bear in mind that the delay which has already taken place has meant that the ratio between the amount of security in place and the amount due has greatly decreased. Interest under the award is running at 14% per annum. Gross J ordered that security of $ 50m be provided 10.5 years ago. $ 50m x 14% x 10 = $ 70m. The same exercise applied to the $ 30m security provided in 2008 produces about another $ 31.5m ($ 30m x 14% x 7.5).’

Christopher Clarke, Burnett, Sales LJJ
[2015] EWCA Civ 1145
Bailii
England and Wales
Citing:
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation CA 10-Nov-2015
The court was asked whether the court below had been right to decline to enforce an arbitration award made in Nigeria in October 2004 and, instead, to continue an adjournment of the enforcement proceedings begun subsequently in this jurisdiction. . .
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 27-Apr-2005
A Nigerian arbitration award between two Nigerian companies was first subject to proceedings in Nigeria to set aside the award and subsequently to enforcement proceedings in England.
Held: Gross J refused to consider immediate enforcement. He . .
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 17-Apr-2008
The court considered its power to enforce a New York Convention award in circumstances where a challenge to the validity of the award is pending before the supervisory court. . .
See Also – Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd CA 21-Oct-2008
The court was asked ‘Can part of a New York Convention arbitration award be enforced? How should sequential applications for enforcement of such an award be approached? ‘
Held: A foreign arbitration award could be enforced within the UK only . .
Appeal from – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 14-Mar-2014
IPCO applied to have enforced here a substantial arbitration award. NNPC replied that the award had been inflated by fraud.
Held: The fraud challenge was made bona fide. NNPC had a good prima facie case that IPCO practised a fraud on the . .

Cited by:
See Also – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation CA 10-Nov-2015
The court was asked whether the court below had been right to decline to enforce an arbitration award made in Nigeria in October 2004 and, instead, to continue an adjournment of the enforcement proceedings begun subsequently in this jurisdiction. . .
At CA – IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation SC 1-Mar-2017
The court was asked whether the appellant NNPC, should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, had been seeking since November 2004 to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 06 January 2022; Ref: scu.554531

Kotonou v National Westminster Bank Plc: CA 30 Oct 2015

Appeal against summary dismissal of claim against the bank based on Henderson v Henderson.
Gloster LJ, commented on Buxton LJ’s observations in the Taylor Walton case: ‘Thus, in my view, what is required in the present case is ‘an intense focus on the facts of this case’, to determine whether in broad terms Mr Kotonou’s new proceedings can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. That approach involves not merely concentrating on the effect of the findings of fact made by the deputy judge (as the master and Morgan J did), but also addressing the much wider question as to whether this is a case which, in all the circumstances, engages the Henderson v Henderson principle. That holistic approach is to be preferred to the artificial exercise of attempting to decide whether, in circumstances not giving rise to cause of action or issue estoppel, there is, or is not a rule, that some additional element or ‘special factor’ is required, what such ‘special factor’ might be and whether it is present in the particular circumstances of the present case.’

Aikens, Kitchin, Gloster LJJ
[2015] EWA Civ 1106
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Kotonou and Another ChD 19-Jun-2006
. .
See Also – National Westminster Bank Plc v Kotonou CA 26-Feb-2007
. .
Explained – Taylor Walton (A Firm) v Laing CA 15-Nov-2007
The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an . .
See Also – National Westminster Bank v Kotonou ChD 11-Dec-2009
. .
Appeal from – Kotonou v National Westminster Bank Plc ChD 5-Jul-2010
. .

Cited by:
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 January 2022; Ref: scu.554266

Barton v Wright Hassall Solicitors Llp: CA 16 Jun 2015

Application for leave to appeal

Longmore LJ
[2015] EWCA Civ 757
Bailii
England and Wales
Cited by:
Leave – Barton v Wright Hassall Llp CA 23-Mar-2016
Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. . .
Application for Leave – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 05 January 2022; Ref: scu.553837

Behrens v Bertram Mills Circus Ltd: QBD 1957

Devlin J explained: ‘It is well established that if a judge gives two reasons for his decision, both are binding. . . [T]he practice of making judicial observations obiter is also well established. A judge may often give additional reasons for his decisions without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance.’ and suggested the following test: ‘This is a matter which the judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference.’

Devlin J
[1957] 2 QB 1, [1957] 1 All ER 583, [1957] 2 WLR 404
England and Wales

Litigation Practice

Updated: 05 January 2022; Ref: scu.545152

Rolled Steel Products (Holdings) Ltd v British Steel Corporation and Others: CA 1986

The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the receiver of the company could assert the invalidity of the transactions as against the defendant companies who had been party to the proposals, and had full knowledge that they were ‘not entered into by the plaintiff for any purpose of the plaintiff but were a gratuitous disposition of the property of the plaintiff’. Complaint was also made as to the judge’s eight month delay in handing down his judgment.
Held: The court related six principles: ‘(1) The basic rule is that a company incorporated under the Companies Acts only has the capacity to do those acts which fall within its objects as set out in its memorandum of association or are reasonably incidental to the attainment or pursuit of those objects. Ultimately, therefore, the question whether a particular transaction is within or outside its capacity must depend on the true construction of the memorandum. (2) Nevertheless, if a particular act (such as each of the transactions of 22 January 1969 in the present case) is of a category which, on the true construction of the company’s memorandum, is capable of being performed as reasonably incidental to the attainment or pursuit of its objects, it will not be rendered ultra vires the company merely because in a particular instance its directors, in performing the act in its name, are in truth doing so for purposes other than those set out in its memorandum. Subject to any express restrictions on the relevant power which may be contained in the memorandum, the state of mind or knowledge of the persons managing the company’s affairs or of the persons dealing with it is irrelevant in considering questions of corporate capacity. (3) While due regard must be paid to any express conditions attached to or limitations on powers contained in a company’s memorandum (e.g. a power to borrow only up to a specified amount), the court will not ordinarily construe a statement in a memorandum that a particular power is exercisable ‘for the purposes of the company’ as a condition limiting the company’s corporate capacity to exercise the power; it will regard it as simply imposing a limit on the authority of the directors: see the David Payne case [1904] 2 Ch 608. (4) At least in default of the unanimous consent of all the shareholders (as to which see below), the directors of a company will not have actual authority from the company to exercise any express or implied power other than for the purposes of the company as set out in its memorandum of association. (5) A company holds out its directors as having ostensible authority to bind the company to any transaction which falls within the powers expressly or impliedly conferred on it by its memorandum of association. Unless he is put on notice to the contrary, a person dealing in good faith with a company which is carrying on an intra vires business is entitled to assume that its directors are properly exercising such powers for the purposes of the company as set out in its memorandum. Correspondingly, such a person in such circumstances can hold the company to any transaction of this nature. (6) If, however, a person dealing with a company is on notice that the directors are exercising the relevant power for purposes other than the purposes of the company, he cannot rely on the ostensible authority of the directors and, on ordinary principles of agency, cannot hold the company to the transaction.’
Lawton LJ discussed the proper approach where it was questioned whether a case was being run on the pleadings: ‘I wish however to add a comment about the pleading points which have had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge, I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points.
My recent experience in this court shows that some counsel and judges are not giving pleadings the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation, they are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and the defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led.
Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as Mr Morritt did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. The principles upon which amendments should be allowed are well known and are set out in the current edition of the Supreme Court practice.’
Slade LJ criticised the tests set out by Eve J, which: ‘. . should in my opinion, now be recognised as being of no assistance, and indeed positively misleading, when the relevant question is whether a particular gratuitous transaction is within the company’s corporate capacity.’

Slade LJ, Browne-Wilkinson LJ
[1986] Ch 246
England and Wales
Citing:
Criticised – In Re Lee, Behrens and Co Ltd ChD 1932
The Court was asked whether an agreement by the company to pay an annuity to the widow (a shareholder) of a former managing director of the company was ultra vires.
Held: Eve J set out three applicable tests: ‘But whether they be made under an . .

Cited by:
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Cited – Progress Property Company Ltd v Moorgarth Group Ltd SC 8-Dec-2010
The appellants appealed against rejection of their claim that there had been an unlawful distribution of capital when the appellant had sold the share capital of a subsidary at an undervalue to the respondent purchaser. The valuation had . .

Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 05 January 2022; Ref: scu.194959

Bao Xiang International Garment Centre and Others v British Airways Plc: ChD 27 Oct 2015

The defendant appied ofr directions saying that the claim brought in the names of 65,000 claimants in China did not in fact have the authority of all but a few claimants to commence the action.
Held: The solicitors acting did not have the authority of the majority of claimants. If asked to do so, the court would have struck out the cliam as an abuse of process.

Rose J
[2015] EWC 3071 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 05 January 2022; Ref: scu.553931

XH v Secretary of State for The Home Department: Admn 21 Oct 2015

Application made by the Secretary of State for the Home Department for a declaration pursuant to section 6 of the 2013 Act to permit her to make a closed material application in these judicial review proceedings.

Burnett LJ, Cranston J
[2015] EWHC 2932 (Admin)
Bailii
Justice and Security Act 2013 6

Litigation Practice

Updated: 05 January 2022; Ref: scu.553791