Category: Litigation Practice

Energy Venture Partners Ltd v Malabu Oil and Gas Ltd: CA 9 Oct 2014

Appeal against an Order requiring the Appellant to provide fortification of its cross-undertaking in damages. It raises for the first time at appellate level the question what is the appropriate test to apply when determining whether such fortification should be provided.

Tomlinson McFarlane LJJ, Sir David Keene
[2014] EWCA Civ 1295
Bailii
England and Wales

Litigation Practice

Updated: 22 December 2021; Ref: scu.537463

Koshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh and Another: CA 5 Feb 2008

Application to set aside earlier order saying that it had been obtained by fraudulent misrepresentation or false evidence

Lord Justice Ward,
Lady Justice Arden,
And,
Lady Justice Smith
[2008] EWCA Civ 27
Bailii
England and Wales
Citing:
See Also – Koshy v Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh CA 24-Nov-2003
One party had been ordered to pay the costs of an unsuccessful attempt to discharge injunctions and strike out the action. The applications failed (badly) and the costs were ordered to be taxed and paid forthwith. Later there was a trial, and the . .
See Also – Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh v Thomas Koshy ChD 13-Dec-2004
The parties had been involved in protracted litigation where a freezing order had been made to support a claim which was eventually dismissed. The claimant sought to have set aside an earlier order made ordering him to pay costs on failing to have . .
See Also – Koshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh ChD 20-Jan-2006
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 December 2021; Ref: scu.264101

In re Nisbet and Potts’ Contract: 1905

Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the equitable right of persons entitled to the benefit of prior restrictive covenants to enforce them against the land.
Farwell J said: ‘Covenants restricting the enjoyment of land, except of course as between the contracting parties and those privy to the contract, are not enforceable by anything in the nature of action or suit founded on contract. Such actions and suits alike depend on privity of contract, and no possession of the land coupled with notice of the covenants can avail to create such privity: Cox v. Bishop (1857) 8 De G.M. and G. 815. But if the covenant be negative, so as to restrict the mode of use and enjoyment of the land, then there is called into existence an equity attached to the property of such a nature that it is annexed to and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created by covenant or contract, cannot be sued on as such, but stands on the same footing with and is completely analogous to an equitable charge on real estate created by some predecessor in title of the present owner of the land charged. . . . effect is given to the negative covenant by means of the land itself. But the land cannot spend money on improving itself, and there is no personal liability on the owner of the land for the time being, because there is no contract on which he can be sued in contract.’

Farwell J
[1905] 1 Ch 391
Cited by:
Cited – Barclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Appeal from – In re Nisbett and Potts Contract CA 1906
The purchaser had agreed to accept a possessory title less than the statutory minimum of 40 years.
Held: Even though he or she extinguishes the estate of the paper owner, a squatter takes subject to the incumbrances on the estate that are not . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Land

Updated: 22 December 2021; Ref: scu.197749

Long v Value Properties Ltd and Another: ChD 30 Sep 2014

This appeal raises the following questions (i) whether a breach of the CPR has occurred here, (ii) if so, what is the applicable sanction, if any, for that breach, and (iii) whether relief from any such sanction should be granted.

Barling J
[2014] EWHC 2981 (Ch)
Bailii
Civil Procedure Rules 3.9
England and Wales

Costs, Litigation Practice

Updated: 21 December 2021; Ref: scu.537246

Daniel v Revenue and Customs: FTTTx 25 Sep 2014

PROCEDURE – application to set aside decision (or part) – Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, rule 38 – whether failure to determine an application made following the hearing to admit new evidence and/or the determination by the FTT of an issue that was alleged not to be part of HMRC’s case were procedural irregularities – whether in the interests of justice to set aside decision of FTT or part of it – application refused

[2014] UKFTT 916 (TC)
Bailii
England and Wales

Litigation Practice

Updated: 21 December 2021; Ref: scu.537253

Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence: Admn 10 Jul 2009

The court rejected an application by a further claimant to be added to the action.

[2009] EWHC 1667 (Admin)
Bailii
England and Wales
Citing:
See Also – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .

Cited by:
See Also – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 December 2021; Ref: scu.347481

T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others: ChD 9 May 2003

T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their liability to make such reimbursements. Lloyd’s called on T and N to make such reimbursement and when T and N became insolvent claimed that the right of recovery from Curzon became transferred to them (Lloyd’s) so that they could claim against Curzon under the 1930 Act.
Held: What was insured was the non-payment of a contract debt due from T and N to Lloyd’s and that such non-payment was not covered by the 1930 Act.

Mr Justice Lawrence Collins
[2003] EWHC 1016 (Ch)
Bailii
Third Parties (Rights Against Insurers) Act 1930
England and Wales
Citing:
See also – Royal and Sun Alliance Insurance Plc and Another v T and N Ltd CA 30-Dec-2002
Appeal against case management directions. . .
Followed – Tarbuck v Avon Insurance Plc ChD 2002
Legal expenses insurance was purchased by a Miss Nicholson who ran a Natural Health Clinic in Clerkenwell. The insurance was called an ‘Office or Surgery Policy’ and section 7, headed ‘Legal Expenses’, provided that the insurers would pay the . .
Cited – Hirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .

Cited by:
See also – Royal and Sun Alliance Insurance Plc and Another v T and N Ltd CA 30-Dec-2002
Appeal against case management directions. . .
Limited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
See Also – Re Tand N Ltd and Others ChD 21-Oct-2004
. .
See Also – Alexander Forbes Trustee Services Limited and Another v Jackson and Others ChD 2-Nov-2004
. .
See Also – Freakley, Gleave, Squires, T&N Limited v Centre Reinsurance International Company, Muenchener Rueckversicherungs-Gesellschaft, European International Reinsurance Company Limited, Curzon Insurance Limited ChD 26-Nov-2004
. .
See Also – T and N Ltd and Others, Re the Insolvency Act 1986 (Communications) ChD 8-Dec-2004
. .
See Also – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
See Also – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .
See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
See Also – In the Matter of T and N Limited and others ChD 12-Apr-2006
. .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 21 December 2021; Ref: scu.183727

Sports Direct International Plc v The Financial Reporting Council: CA 18 Feb 2020

Appeal from order for disclosure of certain documents to the Respondent, the Financial Reporting Council for which legal professional privilege was claimed.
Held: The appeal was allowed in part. The Regulations did not make express provision which would allow the overriding of legal professional privilege.

Sir Terence Etherton MR, Lewison, Rose LJJ
[2020] EWCA Civ 177, [2020] 4 All ER 552, [2020] 2 WLR 1256, [2020] WLR(D) 97, [2020] 2 All ER (Comm) 1027, [2021] Lloyd’s Rep FC 181, [2021] Ch 457
Bailii, WLRD
Statutory Auditors and Third Country Auditors Regulations 2016
England and Wales

Litigation Practice

Updated: 21 December 2021; Ref: scu.648247

Merlin Entertainments LPC and Others v Cave: QBD 25 Sep 2014

The claimants operated amusement parks. The defendant, believing that the parks were not being opearated as safely as they should be set up web-sites attacking the claimants and some employees in intemperate terms. The claimants sought interim relief to prevent the defendant from publishing the web-sites until the case was settled. The defendant argued that this infringed his article 10 rights to freedom of speech. He wanted to justify his claims.

Elisabeth Lang J
[2014] EWHC 3036 (QB)
Bailii
European Convention on Human Rights 10
England and Wales
Citing:
Cited – Bonnard v Perryman QBD 1891
The libel in issue was a very damaging one. Unless it could be justified at the trial it was one in which a jury would give the plaintiff ‘very serious damages’. The court was asked to grant an interlocutory injunction to restrain publication.
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 . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 21 December 2021; Ref: scu.537030

De Souza v Manpower UK Ltd: CA 17 Dec 2013

Renewed application for an extension of time and for permission to appeal. The claimants application to the tribunal had been out of time and was dismissed accordingly. The EAT had directed that any further appeal be lodged within a specified time limit. It had not been met.
Held: Leave refused.

Maurice Kay, Davis LJJ, Sir Stanley Burnton
[2013] EWCA Civ 1794
Bailii
England and Wales
Citing:
Appeal from – De Souza v Manpower UK Ltd EAT 12-Dec-2012
EAT Jurisdictional Points : Extension of Time: Just and Equitable – Race discrimination claim lodged one day out of time. Employment Tribunal decided not just and equitable to extend time. No error of law in ET . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 21 December 2021; Ref: scu.536677

Rahbarpoor and Another v Suliman and Others: ChD 16 Sep 2021

Hearing of the claimant’s application for:
a) permission to rely on the fact of the defendants’ previous convictions, which are spent under the 1974 Rehabilitation of Offenders Act;
b) summary judgment; alternatively
c) an order for a sum of money to be paid into court under CPR Part 24 as security for costs, as a condition for the defendants being permitted to continue to defend the claim.

[2021] EWHC 2686 (Ch)
Bailii
England and Wales

Litigation Practice

Updated: 21 December 2021; Ref: scu.669810

The Serious Fraud Office and Another v Hotel Portfolio II UK Ltd: ComC 18 May 2021

This judgment addresses the Settlement Parties’ application for an order dismissing: ‘HPII’s proprietary claim to the Relevant Property and the IUAs, as advanced in HPII’s Revised Statement of Case dated 13 March 2019 (in relation to the Relevant Property) and HPII’s Statement of Case dated 3 July 2020 (in relation to the IUAs)’,

Mr Justice Foxton
[2021] EWHC 1273 (Comm)
Bailii
England and Wales

Litigation Practice

Updated: 21 December 2021; Ref: scu.663109

Petromec Inc v Petroleo Brasileiro Sa Petrobras and others: CA 23 Jan 2008

Short order.

[2008] EWCA Civ 68
Bailii
England and Wales
Citing:
See Also – Petromec Inc v Petroleo Brasileiro S A Petrobras and others ComC 18-Feb-2003
. .
See Also – Petromec Inc and Petroleo Brasileiro S A Petrobras, Braspetro Oil Services Company v Petromec Inc, Petro-Deep Inc, Maritima Petroleo E Engenharia Ltda QBD 2-Feb-2004
The parties entered into a complex group of inter-related contracts for the purpose of purchasing and upgrading an oil production platform for use by Petrobras in the South Marlim oilfield. At a very early stage it was agreed that the upgrade . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras, Braspetro Oil Services Company, Societa Armamento Navi Appoggio Spa, Den Norske Bank Asa CA 17-Feb-2004
. .
See Also – Petromec Inc v Petroleo Brasileiro SA Petrobrasbraspetro Oil Services etc ComC 20-May-2004
. .
See Also – Petromec Inc Petro-Deep Inc and others v Petroleo Brasileiro Sa and others CA 15-Jul-2005
. .
See Also – Petroleo Brasileiro SA and Another v Petromec Inc and others ComC 3-Nov-2005
. .
See Also – Petromec Inc v Petroleo Brasiliero Sa Petrobras and Another ComC 16-Jun-2006
. .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
See Also – Petromec Inc v Petroleo Brasileiro Sa Petrobras and others ComC 7-Dec-2006
. .
See Also – Petromec Inc v Petrobras ComC 11-May-2007
Defendant’s application for security for costs. . .
See Also – Petromec Inc v Etroleo Brasileiro Sa Petrobras and others ComC 6-Jul-2007
. .
Cited – Petromec Inc v Petroleo Brasileiro SA Petrobras and others CA 21-Dec-2007
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 20 December 2021; Ref: scu.268757

Commissioners of Customs and Excise v Aps Samex: 1983

It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially determinative of the litigation?
(2) Has the same point or substantially the same point been decided by the European court in a previous case?
(3) acte claire – does the court consider the point reasonably clear and free from doubt?
(4) Decide the facts first.’
And: ‘[The Court] has a panoramic view of the Community and its institutions, a detailed knowledge of the treaties and of much subordinate legislation made under them, and an intimate familiarity with the functioning of the Community market which no national judge denied the collective experience of the Court of Justice could hope to achieve. Where questions of administrative intention and practice arise the Court of Justice can receive submissions from the Community institutions, as also where relations between the Community and non-member states are in issue. Where the interests of member states are affected they can intervene to make their views known. That is a material consideration in this case since there is some slight evidence that the practice of different member states is divergent. Where comparison falls to be made between Community texts in different languages, all texts being equally authentic, the multinational Court of Justice is equipped to carry out the task in a way which no national judge, whatever his linguistic skills, could rival. The interpretation of Community instruments involves very often not the process familiar to common lawyers of the laboriously extracting the meaning from words used but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between alternative submissions may turn not on purely legal considerations, but on a broader view of what the orderly development of the Community requires. These are matters which the Court of Justice is very much better placed to assess and determine than a national court.’

Bingham J
[1983] 1 All ER 1042
England and Wales
Citing:
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .

Cited by:
Cited – Fisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding . .
Cited – The Number (UK) Ltd and Another v Office of Communications CAT 24-Nov-2008
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 20 December 2021; Ref: scu.224913

Three Rivers District Council and Others v Governor and Company of Bank of England: CA 6 Dec 1994

Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name.

Peter Gibson LJ
Times 06-Dec-1994, Independent 13-Dec-1994, [1996] QB 292
England and Wales
Cited by:
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking, Litigation Practice

Updated: 20 December 2021; Ref: scu.89885

Commissioners of Inland Revenue and Another v The Test Claimants In The Franked Investment Income Group Litigation: CA 2 Sep 2014

The Commissioners appealed against a refusal of permission to allow HMRC to make certain re-amendments to their defence in ongoing litigation with the respondents, who are Test Claimants in the Franked Investment Income (‘FII’) Group Litigation

Moore-Bick, McFarlane, Gloster LJJ
[2014] EWCA Civ 1214
Bailii
England and Wales

Litigation Practice

Updated: 20 December 2021; Ref: scu.536353

JSC BTA Bank v Ablyazov and Others: ComC 8 Aug 2014

The Claimant sought disclosure from the First and Second Respondents of documents relating to their assets which would attract legal professional privilege unless falling within the iniquity exception to such privilege, and which are currently held by the Third to Fifth Respondents as their solicitors or former solicitors.
Held: Whether or not this risk, if it exists, justifies intervention will be a question of fact and degree in each case

Popplewell J
[2014] EWHC 2788 (Comm)
Bailii
England and Wales
Citing:
Cited – Omar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 20 December 2021; Ref: scu.535674

Prince Abdulaziz v Apex Global Management Ltd and Another: CA 31 Jul 2014

The Prince appealed against orders requiring his personal signature to two witness statements concerning disclosure, rejecting an application to vary that order, imposing an unless order for non-compliance, entering judgment and refusing relief against sanctions, which together had resulted in a judgment against the Prince for some $7m.

Arden, McFarlane, McCombe LJJ
[2014] EWCA Civ 1106
Bailii
England and Wales
Cited by:
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: 18 December 2021; Ref: scu.535454

Browning v The Information Commissioner, The Department for Business, Innovation and Skills: CA 30 Jul 2014

The court was asked: ‘When the First-tier Tribunal is hearing an appeal against a decision of the Information Commissioner, in what circumstances (if any) can it lawfully adopt a closed material procedure in which a party and his legal representatives are excluded from the hearing or part of it?’

Mauric Kay, Patten, McCombe LJJ
[2014] EWCA Civ 1050, [2014] WLR(D) 346
Bailii, WLRD
Freedom of Information Act 2000
England and Wales

Information, Litigation Practice

Updated: 18 December 2021; Ref: scu.535442

Public Guardian v JM: CoP 25 Jun 2014

The court had earlier revoked a lasting power of attorney after a finding that the attorney was in breach of his fiduciary duties as attorney. The judgment had been published but the attorney had not been named. Application was now made for the attorney’s name to be made public.

Sir James Munby P CoP
[2014] EWCOP 7
Bailii

Litigation Practice, Media

Updated: 18 December 2021; Ref: scu.535424

Carter, Regina (on The Application of) v Secretary of State for The Home Department: Admn 29 Jul 2014

The claimant had wanted to apply for leave to remain in the UK, but had been unable to pay the fees for the application. He said that the refusal to waive them infringed his right to family life.

Stewart J
[2014] EWHC 2603 (Admin)
Bailii
European Convention on Human Rights 8

Litigation Practice, Human Rights, Immigration, Family

Updated: 18 December 2021; Ref: scu.535406

Tchenguiz and Others v The Serious Fraud Office: ComC 28 Jul 2014

The applicant sought orders as to the disclosure and use of documents disclosed in the current proceedings for use in a second set of proceedings in Guernsey.
Held: Two orders were granted, and one refused.

Eder J
[2014] EWHC 2597 (Comm)
Bailii
England and Wales
Cited by:
Appeal from – Tchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 December 2021; Ref: scu.535412

Cartus Corporation and Another v Sidell and Another: QBD 24 Jul 2014

Reasons for non-continuance of without notice injunction.

Nicol J
[2014] EWHC 2492 (QB)
Bailii
England and Wales
Citing:
See Also – Cartus Corporation Cartus Ltd v Siddell and Another QBD 16-Jul-2014
The court discharged an interim injunction granted within a defamation claim in turn within a dispute as to the return of two shipping containers and allegations of inflated invoices. . .

Cited by:
See Also – Cartus Corporation v Atlantic Mobility Ltd QBD 22-Aug-2014
The parties had disputed the return of two shipping containers. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 December 2021; Ref: scu.535258

Phillips v Eyre: CEC 1870

The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England . . Secondly, the act must not have been justifiable by the law of the place where it was done.’ Hoeever: ‘the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation . . such law is no bar to an action in this country.’

Willes J
(1870) LR 6 QB 1 28, (1870) 40 LJQB 28, 22 LT 869, 10 B and S 1004, [1870] JMSCPCSteph 5
Commonlii
England and Wales
Citing:
Cited – Huber v Steiner 1835
An action was brought in 1835 on a French promissory note made in 1813 and payable in 1817. The defendant pleaded that by French law an action upon the note was prescribed.
Held: On its true construction, French law did not extinguish the debt . .

Cited by:
Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 December 2021; Ref: scu.183535

Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1): CA 19 Dec 2002

Capacity for Litigation

The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the time to accept the offer.
Held: There is no definition of mental capacity of universal application, but rather the issue of capacity must be looked at in the context of each decision to be made. A person may be capable in law of one kind of decision, but not of another. There was no precedent case dealing with the capacity to conduct and settle proceedings. A person may have that capacity but not necessarily the capacity to administer an award once received. A medical expert asked to advise, should answer against the particular background issue. The issue might be properly addressed in the court forms.
Capacity should be judged in a common sense way, bearing in mind the need to allow people the right to manage their own affairs. The test under the Civil Procedure Rules provided the need for a party to be able to understand the issues, with such professional assistance as was appropriate. A person is not to be regarded as incapable of managing his affairs because, in order to do so, he will need to take advice, or because he may not take it, when given, or because he is vulnerable to exploitation, or at risk of taking rash or irresponsible decisions.
Kennedy LJ said: ‘What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White’s case [White v Fell (unreported) 12th November 1987), capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.’
Chadwick LJ said: ‘English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself . .
The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained . .
The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation . .
For the purposes of Order 80 – and, now, CPR Pt 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).’

Lord Justice Potter, Lord Justice Kennedy, Lord Justice Chadwick
Times 28-Dec-2002, [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5
Bailii
Civil Procedure Rules 21, Rules of the Supreme Court 80, Mental Health Act 1983
England and Wales
Citing:
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Re Cumming CA 1852
Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Re C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – W v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
Cited – Kirby v Leather CA 1965
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
Cited – Ball v Mallin HL 1829
A person must have the necessary mental capacity if he is to execute a voluntary deed. The House upheld a direction to the jury that what was required was that a person ‘should be capable of understanding what he did by executing the deed in . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Molton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
Cited – Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – Manches v Trimborn 1946
The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction. . .
Cited – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
Cited – Gibbons v Wright 1954
(High Court of Australia) Sir Owen Dixon discussed the principle that mental capacity at law varied with the transaction at issue: ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which . .
Cited – Mason v Mason 1972
The court considered the mental capacity required of somebody to give their consent to a decree of divorce. . .
Cited – In Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
Cited – Re K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
Cited – Beall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Cited – In Re CAF 1962
When considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to the complexity and importance of that person’s property and affairs. . .
Cited – In re S (F G) (Mental Health Patient) 1973
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act . .

Cited by:
Cited – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
See Also – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
Cited – A v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Applied – Lindsay v Wood QBD 16-Nov-2006
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Cited – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 18 December 2021; Ref: scu.178553

Azienda Agricola Silverfunghi Sas v Italy: ECHR 24 Jun 2014

ECHR Article 6
Civil proceedings
Article 6-1
Fair hearing
Legislative interference in pending judicial proceedings through retroactive legislation: violation
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Legislative interference with property right through retroactive legislation aimed at decreasing public expenditure: no violation
Facts – In the 1980s the Italian legislature passed laws providing agricultural firms with a two-fold reduction, through concessions and exemptions, of the social-security contributions which they paid for their employees. In July 1988 the Italian disbursement authority (INPS) issued a circular stating that the concessions and exemptions were alternative, not cumulative. The applicants, four agricultural companies, instituted proceedings against INPS in 2000 and 2002. In line with the prior jurisprudence of the Italian courts including the Court of Cassation, the first-instance and appellate courts ruled in the companies’ favour, holding that the two benefits were cumulative. However, in November 2003 the Italian legislature passed Law no. 326, which expressly provided that the concessions and exemptions were alternative, not cumulative. Thereafter, INPS appealed to the Court of Cassation, which allowed the appeals on the basis of Law no. 326. In 2006 the Constitutional Court upheld that law, stating that outside the criminal sphere the legislature could enact laws with retroactive effect in so far as such retroactivity was reasonably justified and not in conflict with the Constitution. More recently, in 2008 the Court of Cassation reversed its earlier position and held that even without Law no. 326, the concession and exemptions would not be cumulative because the original intention of the legislature had been to make them alternative.
Law – Article 6 – 1: The applicant companies complained that Law no. 326 constituted a legislative interference in judicial proceedings in breach of their right to a fair trial. The Court recalled that Article 6 precluded legislative interference in pending judicial proceedings, except for compelling public interest reasons. In the present case, Law no. 326 had had a definitive impact on the outcome of pending litigation, and there was no compelling public interest reason for its retroactive application. Financial considerations could not by themselves warrant the legislature substituting itself for the courts.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The applicant companies complained that Law no. 326 amounted to an interference with their property right, as it retroactively extinguished their claims over amounts unlawfully withheld by INPS. The Court noted that, in evaluating whether this interference struck a fair balance between the public interest and the protection of property, a wide margin of appreciation had to be afforded to States in the area of general measures of economic strategy. Since the legislature’s policy choice was not ‘manifestly without reasonable foundation’ but rather sought to decrease public expenditure, the Court found that Law no. 326 conformed to the lawfulness requirement of Article 1 of Protocol No. 1. Moreover, the impugned measure did not impose an excessive burden on the applicant companies, as they could still run their businesses, had opted to forfeit cumulative benefits for a certain number of years and were still beneficiaries of one of the benefits.
Conclusion: no violation (five votes to two).
Article 41: EUR 44,900 to the first applicant, EUR 106,900 to the second applicant, EUR 54,400 to the third applicant and EUR 42,200 to the fourth applicant in respect of pecuniary damage; EUR 1,000 to each applicant in respect of non-pecuniary damage.(See also Maggio and Others v. Italy, 46286/09 et al, 31 May 2011, Information Note 141; and Arras and Others v. Italy, 17972/07, 14 February 2012, Information Note 149).

52701/07 – Legal Summary, [2014] ECHR 804, 48357/07, 52677/07, 52687/07
Bailii
European Convention on Human Rights 6-1

Human Rights, Litigation Practice

Updated: 17 December 2021; Ref: scu.535168

Tchenguiz and Others v Director of The Serious Fraud Office: ComC 16 Jul 2014

Application by the first claimant for permission to instruct a separate review team including lawyers familiar with the detail of certain discrete proceedings in Guernsey, Investec and another v Glenalla Properties Ltd and others (the ‘Guernsey proceedings’), in order to identify further documents disclosed by the defendant (the ‘SFO’) in these proceedings which may be relevant to a pending appeal in the Guernsey proceedings

Eder J
[2014] EWHC 2379 (Comm)
Bailii
England and Wales

Litigation Practice

Updated: 17 December 2021; Ref: scu.534354

Re K (A Child): CA 15 Jul 2014

Appeals by a father against orders made in wardship proceedings concerning M, a young boy who was born on 5 July 2012 and is currently in Singapore where he is being cared for by his paternal grandparents. The trial judge had made it plain to a recalcitrant father that, if he did not take action against the child’s grandparents in Singapore for the return of the child to the UK, he would be likely to be imprisoned for a lengthy term. He took no such action and she declined to recuse herself from the subsequent committal hearing.
Held: Kitchin LJ criticised the judge’s very short judgment. She had not make clear that, despite her earlier observations and comments, she had not pre-judged the question whether the father was in deliberate breach of her orders and should be sentenced to a substantial term of imprisonment. There was therefore an appearance of bias or, at any rate, pre-judgment.

Maurice Jay, McFarlane, Kitchin LJJ
[2014] EWCA Civ 905
Bailii
England and Wales
Cited by:
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 17 December 2021; Ref: scu.534296

Spurrier, Regina (on The Application of) v The Secretary of State for Transport: Admn 5 Feb 2019

Live streaming of video and audio from a court room is prohibited.

Lord Justice Hickinbottom, and
Mr Justice Holgate
[2019] EWHC 528 (Admin), [2019] EMLR 2016, [2021] 4 WLR 33
England and Wales
Cited by:
See Also – Spurrier, Regina (on The Application of) v The Secretary of State for Transport Admn 1-May-2019
Challenge to policy supporting establishment of third runway at Heathrow Airport . .
Cited – Gubarev and Another v Orbis Business Intelligence Ltd and Another QBD 6-Aug-2020
Wrongful Transmission of Distanced Hearing
In a defamation case, the solicitors representing one party had live streamed a video of a defamation trial to several individuals outside the jurisdiction without the Court’s permission. The trial took place during the Coronavirus pandemic, and . .
Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Cited – Rowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court, Media

Updated: 17 December 2021; Ref: scu.653082

Greenwich Millennium Village Ltd v Essex Services Group Plc and Others: CA 11 Jul 2014

Appeal by a labour only sub-sub-sub-contractor against a decision of Mr Justice Coulson that it is liable to indemnify the respondent, who was the party above it in the contractual chain, for workmanship defects which caused flooding in a block of flats. The principal issue in this appeal is whether the respondent’s failure to detect those defects precludes recovery under an indemnity clause, alternatively prevents recovery of the same sum as damages for breach of contract.
Held: A contractor whio had sub-contracted work with an indemnity was not by its own negligence prevented from enforcing the indemnity.
It is legitimate for any higher court hearing an appeal from a judgment of the court below to take into account any supplemental judgment or statement in which the judge amplified the reasons given for the main judgment:

Jackson, Beatson, Gloster LJJ
[2014] EWCA Civ 960, [2014] 1 WLR 3517, [2014] WLR(D) 309, (2014) 156 Con LR 1
Bailii, WLRD
England and Wales
Cited by:
Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .

Lists of cited by and citing cases may be incomplete.

Construction, Litigation Practice

Updated: 16 December 2021; Ref: scu.534109

Kousouros v O’Halloran and Another: ChD 10 Jul 2014

The claimant appealed against a decision on disclosure of documents in the context of their claims as to the contents of their late father’s estate. They sought disclosure of attendance notes made by the first defendant, the deceased’s former solicitor.

Simon J
[2014] EWHC 2294 (Ch)
Bailii
England and Wales

Wills and Probate, Litigation Practice

Updated: 16 December 2021; Ref: scu.534084

Glasgow Navigation Co v Iron Ore Co: HL 1910

Lord Lorebum said: ‘It is not the function of a court of law to advise the parties as to what would be their rights under a hypothetical state of facts’.

Lord Loreburn LC
[1910] AC 293
Scotland
Cited by:
Cited – 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.

Litigation Practice

Updated: 16 December 2021; Ref: scu.463526

Webster v Bakewell Rural District Council (No 2): 1916

The plaintiff was life tenant of a cottage adjoining the highway. Over a period of time, scrapings from the road had accumulated to form a bank which suited the plaintiff. The defendant, wanting to repair the roadway, removed the bank, and the plaintiff sued.
Held: The plaintiff’s claim had no prospect of success, and was to be struck out as an abuse of process. The authority had acted within its rights and no actionable damage had arisen.

(1916) 115 LT 678, (1916) LJ Ch 89, (1916) 80 JP 437, (1916) 14 LGR 1109
Cited by:
Cited – 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.

Land, Litigation Practice

Updated: 16 December 2021; Ref: scu.463535

Arkin v Borchard Lines Limited Andzim Israel Navigation Company Ltd and others v Managers and Processors of Claims: QBD 27 Nov 2003

The Honourable Mr Justice Colman
[2003] EWHC 2844 (Comm)
Bailii
Citing:
See Also – Arkin v Borchard Lines Ltd and others ComC 10-Apr-2003
The Claimant sought damages for breach of the Rome Treaty Articles 82 and 81. His shipping company had faced organised anti-competitive attempts by the respondents to put him out of business.
Held: A cause of action for breach of a statutory . .

Cited by:
See Also – Arkin v Borchard Lines Limited, Andzim Israel Navigation Company Ltd and others (No 3) ComC 16-Dec-2003
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 December 2021; Ref: scu.188275

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 solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.

Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
[2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
Bailii
Tribunals of Inquiry Evidence Act 1921 1(3)
England and Wales
Citing:
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 . .
Appeal from – Three Rivers District Council v Bank of England (No 5) ComC 4-Nov-2003
The defendant bank sought protection from disclosure of advice it had received from its solicitors.
Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
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 – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Carpmael v Powis 1846
The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
Cited – 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. . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Wilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .

Cited by:
Appeal from – 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.

Litigation Practice, Legal Professions

Updated: 16 December 2021; Ref: scu.194072

Bullivant v Attorney-General for Victoria: PC 1900

Fraud or dishonesty must be distinctly alleged and as distinctly proved. It must be sufficiently particularised; and it is not sufficiently particularised if the facts pleaded are consistent with innocence.
‘for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.’ Tat principle applies unless a purpose of the communication is itself to frustrate the process of law, ‘to help to evade the law by illegal conduct’ (Lord Lindley).

Earl of Halsbury LC, Lord Lindley
[1901] AC 196, [1900] 2 QB 163
Commonwealth
Cited by:
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: 16 December 2021; Ref: scu.219416

Deeny and Others v Gooda Walker Ltd and Others: QBD 5 May 1995

A decision as to an agent’s liability may be deferred pending decisions in other courts on anticipated claims.

Times 05-May-1995
England and Wales
Citing:
See Also – Deeny and Others v Gooda Walker Ltd and Others QBD 26-Jan-1995
Damages awards received by Lloyds’ names for their managing agents’ negligence were taxable as trading income, since they were revenue receipts. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 December 2021; Ref: scu.79873

Hughes Jarvis Limited v Searle: Misc 27 Apr 2018

(Oxford County Court) An application was made for the committal for contempt of a party. The court had adjourned overnight while he was giving evidence, and despite being warned against communicating with anyone else, had sent numerous emails to his solicitor and counsel.
Held: The Court abridged the time for notice.

Clarke HHJ
[2018] EW Misc B6 (CC)
Bailii
England and Wales
Citing:
Cited – Chidzoy v British Broadcasting Corporation EAT 5-Apr-2018
Strike out for unreasonable conduct
PRACTICE AND PROCEDURE – Striking-out/dismissal
Strike out of claim – unreasonable conduct of proceedings
During a short break in the course of giving evidence at the Full Merits Hearing of her claims, the Claimant participated in a . .
Cited – 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 . .

Cited by:
Appeal from – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 16 December 2021; Ref: scu.633114

Discovery Land Company Llc and Others v Jirehouse and Others: ChD 7 Jun 2019

The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and wished to obtain representation.
Held: The adjournment had to be granted, and ‘ I do not consider that Mr Jones can be compelled to be cross-examined or can be put to an election as to whether to rely upon his affidavit evidence or to submit to cross-examination. However, given that very serious allegations of dishonesty, both in respect of attempts to deceive the claimants and attempts to deceive the court, are advanced with some particularity against Mr Jones, if he chooses not to be cross-examined, having received appropriate legal advice, then it may be (and I reach no conclusion on this at the moment) that there is at the very least a risk that the court will draw adverse inferences against him. That is a matter that Mr Jones will need to consider with his legal advisers.’

Henry Carr J
[2019] EWHC 1633 (Ch)
Bailii
England and Wales
Citing:
Cited – King’s Lynn and West Norfolk Council v Bunning QBD 7-Nov-2013
Application for order finding the defendant and others to be in contempt of court in breaching an order as to the use of land for residential purposes.
Held: A committal application has the character of criminal proceedings. The alleged . .
Cited – Inplayer Ltd and Another v Thorogood CA 25-Nov-2014
Appeal against a decision that the first defendant in a chancery action was guilty of two contempts of court by reason of untruthful statements in his affidavit. He complained of procedural irregularities affecting the fairness.
Held: ‘the . .
Cited – Brown v London Borough of Haringey CA 14-May-2015
‘The present appeal once again raises questions of the availability of publicly funded legal representation in proceedings for the committal to prison of individuals said to be in contempt of court in failing to comply with court orders and, if such . .
Cited – Comet Products UK Ltd v Hawkex Plastics CA 1971
The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis . .
Cited – Crest Homes Plc v Marks HL 1987
The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in . .
Cited – VIS Trading Co Ltd v Nazarov and Others QBD 18-Nov-2015
Application for the first defendant to be committed for alleged contempt of court for having failed to make disclosure of documents as required by a court order.
Whipple J said: ‘In this case, the extent to which the Defendants are in . .

Cited by:
See Also – Discovery Land Company, Llc and Others v Jirehouse and Others (Penalty) ChD 16-Aug-2019
. .
See Also – Discovery Land Company, Llc and Others v Jirehouse (A Body Corporate) and Others ChD 16-Aug-2019
Request for committal of a defendant, a solicitor, for contempt of court inter alia for breaches of undertakings given personally by him (and his firm) to pay surplus funds from a transaction amounting to $9.3 million or the sterling equivalent into . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 16 December 2021; Ref: scu.639286

Rooney v Kelly (T/A JKL Furniture Warehouse): NIHCM 12 May 2014

The claimant had brought his case for repayment of sums paid for some furniture. He had lost, but commenced further proveedings now. The defendant applied for the action to be struck out as an abuse.
Held: The action was struck out as an abuse.

[2014] NIMaster 8
Bailii
England and Wales

Northern Ireland, Litigation Practice

Updated: 16 December 2021; Ref: scu.533894

Aberconway v Whetnall: 1918

Lord Aberconway and others sought to recover for themselves and all other subscribers to a fund for the benefit of the defendant the amounts they had collectively subscribed on the grounds that they were induced to do so by misrepresentation.
Held: Insofar as the claim was made in a representative capacity it was misconceived because it could not be said that: ‘the donors to the fund have a common interest and a common grievance when the very existence of the grievance depends on facts which may differ in each individual case.’

Eve J
(1918) 87 LJ Ch 524
England and Wales
Citing:
Cited – Duke of Bedford v Ellis HL 10-Dec-1900
Ellis and five others sued on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs to enforce rights conferred on them by the Covent Garden Act 1828 against the Duke of Bedford as the owner of the market. The Duke . .

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 15 December 2021; Ref: scu.392980

John v Rees and Others; Martin and Another v Davis and Others: ChD 1969

The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of the local Labour party other than the three individual defendants who constituted the other faction.
Held: The court refused to strike out the claim.
The rule from ‘the Duke of Bedford’ case with regard to representative actions in Chancery is to be treated not as a rigid matter of principle but a flexible tool of convenience in the administration of justice.
The court observed about the argument that as to a failure to follow proper procedure, ‘it will make no difference’. ‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.’ The language used is relevant to the issue whether it is ‘apt . . to exclude the . . expectation of being accorded natural justice.’
A supension can have very severe effects on an employee’s reputation, ‘In essence suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of his enjoyments of membership or office. Accordingly, in my judgment the rules of natural justice prima facie apply to any process of suspension in the same way they apply to expulsion. In my view therefore, it is clear that the suspension of the Applicant is justiciable.’

Megarry J
[1970] 1 Ch 345, [1969] 2 All ER 275
England and Wales
Citing:
Cited – Duke of Bedford v Ellis HL 10-Dec-1900
Ellis and five others sued on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs to enforce rights conferred on them by the Covent Garden Act 1828 against the Duke of Bedford as the owner of the market. The Duke . .

Cited by:
Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Approved – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – M Iqbal v Consignia Plc EAT 5-Dec-2002
EAT Procedural Issues – Employment Tribunal
The claimant had had his claims for discrimination rejected. He was found to have been unfairly dismissed, but with nil compensation because of what was found to . .
Cited – Regina v Chief Constable of the Thames Valley Police, Ex parte Cotton CA 1990
The Chief Constable’s power to dispense with a probationer’s services under Condition 7 is only exercisable in cases where the probationer constable’s unfitness does not arise from alleged misconduct, for example where it arises from the constable’s . .
Cited – Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’) CA 1984
The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been . .
Cited – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – MR, Regina (on The Application of) v The Secretary of State for The Home Department Admn 10-Mar-2017
The claimant challenged the use of the Royal Prerogative to withdraw his passport. He had as a youth been involved with a terrorist organisation, but said that he now regretted that and was no longer so involved. He had sought to set up a business, . .
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment, Natural Justice

Updated: 15 December 2021; Ref: scu.179754

Joachimson v Swiss Bank Corporation: CA 1921

The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the customer demands payment by the bank. The court set out the legal characteristics of a current bank account. For a bank account in credit, a demand is a necessary precondition to the customer having a cause of action to recover all or part of the balance of the account.
Atkin LJ rejected the proposition that a current account can be analysed as a simple contract of loan, with a superadded obligation of the bank to honour the customer’s drafts to any amount not exceeding the credit balance at any time. He said ‘I think there is only one contract made between the banker and its customer. ‘- ie, when a customer sues the bank to recover money in its current account, the customer is suing on the banker-customer contract, not suing for repayment of a loan or set of loans constituted by deposits.

Atkin LJ
[1921] 3 KB 110, [1921] 37 TLR 534, [1921] All ER 92, 125 LT 338
England and Wales
Cited by:
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – Thomas Cook (New Zealand) Limited v Inland Revenue PC 10-Nov-2004
(New Zealand) Under the Act, certain companies had a duty to pay over to the Inland Revenue balance held on old and dormant accounts. They had issued travellers cheques which had never been presented. The revenue argued that the claim arose six . .
Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking

Updated: 15 December 2021; Ref: scu.183522

Duke of Bedford v Ellis: HL 10 Dec 1900

Ellis and five others sued on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs to enforce rights conferred on them by the Covent Garden Act 1828 against the Duke of Bedford as the owner of the market. The Duke of Bedford obtained as strike out. The Court discharged that order on the undertaking of the plaintiffs to join the Attorney-General as a defendant. The Duke’s appeal was dismissed. The Courts interpret the rules ‘for the sake of convenience’ and ‘in accordance with common sense’ in order to ‘come at justice’
Lord Macnaghten discussed whether the rule only applied to claims to some beneficial right of property and said ‘But it seems to me that there is no reason whatever for so restricting the rule, which was only meant to apply the practice of the Court of Chancery to all divisions of the High Court. The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you could never ‘come at justice’, to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense.’
The ‘old’ rule in the Court of Chancery was very simple and perfectly well understood and provided that if a common interest and a common grievance existed, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. This was irrespective as to whether the represented persons were residents.

Lord MacNaghten
[1901] AC 1, [1900] UKLawRpAC 56, [1900-3] All ER 694
Commonlii
England and Wales
Cited by:
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
Cited – Aberconway v Whetnall 1918
Lord Aberconway and others sought to recover for themselves and all other subscribers to a fund for the benefit of the defendant the amounts they had collectively subscribed on the grounds that they were induced to do so by misrepresentation.
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 15 December 2021; Ref: scu.179753

Coles v Ravenshear: CA 5 Nov 1906

If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the court should relax it. Lord Esher MR said: ‘a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.’

Lord Esher MR
[1907] 1 KB 1, [1906] UKLawRpKQB 137
Commonlii
England and Wales

Litigation Practice

Updated: 15 December 2021; Ref: scu.514986

A Local Authority v A Mother and Others: FD 3 Jul 2009

The court considered the limiting of disclosure of evidence in care proceedings where this was thought necessary to protect the safety of witnesses.

Hedley J
[2009] EWHC 1574 (Fam), [2010] 1 FLR 545, [2009] Fam Law 926
Bailii
England and Wales
Cited by:
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 13 December 2021; Ref: scu.349066

Zahoor and Others v Masood and Others: CA 3 Jul 2009

It was argued that the judge should have struck the claim out as an abuse of process on the ground that some at least of the claims were based on forged documents and false written and oral evidence.
Held: Arrow Nominees was authority for the proposition that, where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute his claim, then the claim may be struck out for that reason, and: ‘We accept that, in theory, it would have been open to the judge, even at the conclusion of the hearing, to find that Mr Masood had forged documents and given fraudulent evidence, to hold that he had thereby forfeited the right to have the claims determined and to refuse to adjudicate upon them. We say ‘in theory’ because it must be a very rare case where, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way.
One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Once the proceedings have run their course, it is too late to further that important objective. Once that stage has been achieved, it is difficult see what purpose is served by the judge striking out the claim (with reasons) rather than making findings and determining the issues in the usual way. If he finds that the claim is based on forgeries and fraudulent evidence, he will presumably dismiss the claim and make appropriate orders for costs. In a bad case, he can refer the papers to the relevant authorities for them to consider whether to prosecute for a criminal offence: we understand that this was done in the present case.’

Mummery, Dyson and Jacob LJJ
[2010] 1 WLR 746, [2009] EWCA Civ 650, [2010] 1 All ER 888, [2010] Bus LR D12, [2009] CP Rep 44
Bailii
England and Wales
Citing:
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .

Cited by:
Approved – 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 . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.347425

National Westminster Bank Plc v Rabobank Nederland: ComC 15 Sep 2006

Application for discovery of documents.

Smith J
[2006] EWHC 2332 (Comm)
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .

Cited by:
Appeal from – National Westminster Bank Plc v Rabobank Nederland CA 24-Oct-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.272527

Crest Homes Plc v Marks: HL 1987

The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in the second action showed that the defendants had not complied with the Anton Piller order in the first action.
Held: Lord Oliver of Aylmerton considered the implied undertakings given by parties to litigation on discovery of documents: ‘the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind. But the implied undertaking is one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the court.’ It was for the party seeking release from the collateral purpose rule to ‘demonstrate cogent and persuasive reasons’.
Lord Oliver said: ‘It is clearly established that although a contemnor is not a compellable witness, in proceedings against him for contempt, if he gives evidence, he can be cross-examined on it in relation to the contempt alleged.’

Lord Oliver of Aylmerton
[1987] AC 829, [1987] 2 All ER 1074, [1987] 3 WLR 48
England and Wales
Citing:
Cited – Sybron Corporation v Barclays Bank plc ChD 1985
Scott J said as regards the undertakings implied on giving discovery of documents during litigation that they applied not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a . .

Cited by:
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Cited – IG Index Plc v Cloete QBD 11-Dec-2013
The defendant applied to have struck out the claim, saying that it was based upon a misuse of documents disclosed during an employment tribunal case, and was an abuse since the claimants had not sought the permission of the Tribunal for a second use . .
Cited – Tchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .
Cited – Discovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.268775

National Westminster Bank Plc v Rabobank Nederland: CA 24 Oct 2006

Lord Justice Auld
[2006] EWCA Civ 1578
Bailii
England and Wales
Citing:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 3-Feb-2006
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 7-Aug-2006
Claim for duty of bank to reveal extent of its own involvement where it was supporting investments as between its customers. . .
Appeal from – National Westminster Bank Plc v Rabobank Nederland ComC 15-Sep-2006
Application for discovery of documents. . .

Cited by:
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 14-Nov-2006
On a request for a strike out the test in every case must be what is just and proportionate; and at para 62, as a postscript, that ‘nothing in this judgment affects the correct approach in a case where an application is made to strike out a . .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 11-May-2007
. .
See Also – National Westminster Bank Plc v Rabobank Nederland ComC 19-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice

Updated: 13 December 2021; Ref: scu.246364

Logicrose Ltd v Southend United Football Club Ltd: CA 5 Feb 1988

The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a secret profit. ‘The remedy is not confined to cases where the agent has taken a bribe or secret commission in the strictest sense. It is available whenever, without his principal’s knowledge and consent, the agent has put himself in a position where his interest and duty may conflict. A principal is entitled to the disinterested advice of his agent free from the potentially corrupting influence of an interest of his own. Any such private interest, whether actual or contemplated, which is not known and consented to by his principal, disqualifies him.’
Millet LJ: ‘It is well established that a principal who discovers that his agent in a transaction has obtained or arranged to obtain a bribe or secret commission from the other party to the transaction is entitled, in addition to other remedies which may be open to him to rescind the transaction ab initio or, if it is too late to rescind, to bring it to an end for the future.’
An application was made to strike out the action in the middle of the substantive hearing on the ground that the responsible director of the plaintiffs had ‘deliberately suppressed [a crucial document] and, for a time, successfully concealed its existence from the Court.’
Held: The Court’s processes had not been defeated and the proceedings should be allowed to proceed.
Millet LJ said: ‘That is a very serious allegation indeed if true it would deserve the serious consequences for which the defendants ask, but it must be clearly proved . . it does not have to be proved in accordance with the criminal standard of proof. Deliberate disobedience of a peremptory order for discovery is no doubt a contempt and, if proved in accordance with the criminal standard of proof, may, in theory at least, be visited with a fine or imprisonment. But to debar the offender from all further part in the proceedings and to give judgment against him accordingly is not an appropriate response by the Court to contempt. It may, however, be an appropriate response to a failure to comply with the rules relating to discovery, even in the absence of a specific order of the Court, and so in the absence of any contempt, not because that conduct is deserving of punishment but because the failure has rendered it impossible to conduct a fair trial and would make any judgement in favour of the offender unsafe. In my view a litigant is not to be deprived of his right to proper trial as a penalty for his contempt or his defiance of the Court, but only if his conduct has amounted to an abuse of the process of the Court which would render any further proceedings unsatisfactory and prevent the Court from doing justice. Before the Court takes that serious step it needs to satisfied that there is a real risk of this happening.’ and ‘The deliberate and successful suppression of a material document is a serious abuse of the process of the Court and may well merit the exclusion of the offender from all other participation in the trial. The reason is that it makes the fair trial of the action impossible to achieve and any judgment in favour of the offender unsafe. But if the threat of such exclusion produces the missing document, then the object of order 24 rule 16 is achieved. ‘

Millet LJ
Times 05-Mar-1988, [1988] 1 WLR 1256
England and Wales
Citing:
Cited – Husband’s of Marchwood Ltd v Drummond Walker Developments Ltd 1975
The object of Order 24 Rule 16 is not to punish the offender for his conduct, but to secure compliance with the Rules of Court and orders of court relating to discovery, and the fair trial of the action in accordance with the due process of the . .

Cited by:
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – Landauer Ltd v Comins and Co (a firm) CA 14-May-1991
The first instance Judge had struck out a claim under the provisions of order 24 rule 16(1) in circumstances where a number of relevant documents did not appear on the plaintiffs list of documents and were found to have been destroyed, the . .
Cited – London Borough of Lambeth v Blandford EAT 20-May-1997
The tribunal considered making an order to strike out Lambeth’s case for failure to comply with orders for directions made by the Tribunal. On the question of the circumstances in which a striking out would be justified under rule 4 of the Tribunal . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court, Agency

Updated: 13 December 2021; Ref: scu.211359

Vakauta v Kelly: 1988

(Supreme Court of New South Wales) The judge had made disparaging remarks about certain doctor witnesses who ‘thought you could do a full day’s work with no arms and no legs.’ Mahoney JA discussed a suggestion of apparent bias, saying: ‘In considering the content of the apprehended bias principle the court must look to, inter alia, two things: what are the norms or standards relevant to the kind of case before it; and whether, on the facts, the requirements have been fulfilled.’

Mahoney JA
(1988) 13 NSWLR 502
Australia
Cited by:
Appeal from – Vakauta v Kelly 1989
(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.654119

Regina v Cripps; Ex parte Muldoon: CA 1984

The Elections Commissioner had sought, some time after his order on a petition, to clarify the order from costs.
Held: The Commissioner, and in turn Keith J, had been wrong to consider themselves not bound by Muldoon. What Mr Cripps (the Commissioner) had purported to do went far beyond what the slip rule permitted so that his remarks were ‘wholly without effect’. Sir John Donaldson MR said: ‘if a court has reached a decision which is ambiguously expressed either in the reasoned judgment or in the formal orders giving effect to the decision, the ambiguity of expression can be removed in the exercise of the slip rule powers’. And the slip rule: ‘is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
‘It is a distinction between having second thoughts and intentions and correcting an award to give effect to first thoughts or intentions which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misappreciates the law the resulting award or judgment will be erroneous but it cannot be corrected under section
17 (of the Arbitration Act 1950) or under the old Order 20 Rule 11. It cannot normally be corrected under section 22 (where the arbitrator has made a mistake). The remedy is to appeal if the right of appeal exists. The skilled arbitrator or judge may be tempted to describe this as an accidental slip but this is a natural form of self-exculpation.
He also approved the commentary in Mustill and Boyd on Commercial Arbitration at page 406: ‘This [the Arbitration Act 1996] enables the arbitrator to make an award on a claim which he has inadvertently overlooked such as an award of interest or to correct errors of accounting or arithmetic such as attributing a credit item to the wrong party but the section does not give the arbitrator licence to give effect to second thoughts on a matter on which he has made a conscious judgment.’
So far as the adjudication ‘slip rule’ is concerned, the following can be said:
(a) An adjudicator can only revise a decision if it is an implied term of the contract by which adjudication is permitted to take place that permits it. It does not follow that, if it is purely a statutory arbitration under the HGRCA (if there is no contractual adjudication clause), such implication can be said to arise statutorily.
(b) If there is such an implied term, it can and will only relate to ‘patent errors’. A patent error can certainly include the wrong transposition of names or the failing to give credit for sums found to have been paid or simple arithmetical errors.
(c) The slip rule cannot be used to enable an adjudicator who has had second thoughts and intentions to correct an award. Thus for example, if an adjudicator decides that the law is that there is no equitable right of set off but then changes his mind having read some cases feeling that he has got that wrong, such a change would not be permitted because that would be having second thoughts.’
Sir John Donaldson MR set out the concept of functus officio: ‘Most courts continue in existence over a period of time and deal with many different and separate proceedings. Questions arise as to whether and to what extent the court has finally disposed of each proceeding or issue arising in such a proceeding. When it has, the judge who presided is said to have become functus officio, quoad that issue or those proceedings. An election court, or at least one concerned with a petition questioning a local election, is somewhat different. It is brought into existence by the appointment of a barrister to constitute that court and the trial of that petition is the life-work of the court. When that trial has been concluded in accordance with s. 125 of the Act of 1949, not only is the barrister functus officio but the court ceases to exist.’
and: ‘It is not . . necessary to consider whether on that day he was sitting as ‘Mr Commissioner Cripps’ in or as a local election court or whether his remarks were those of ‘Mr Anthony Cripps QC’ speaking under a misapprehension as to his capacity. Suffice it to say that although by section 115(6) of the Act of 1949 a local election court has ‘for the purposes of the trial . . the same powers and privileges as a judge on the trial of a parliamentary election petition’ (our emphasis) which would import the High Court slip rule power, it is probable that these powers are inapplicable once the trial has been concluded by the formalities prescribed by section 125 and that thereafter slips must be corrected by the High Court under the powers contained in section 137(3). However, even if Mr Cripps had been appointed as a deputy High Court judge and invited to exercise the powers of the High Court, for the reasons which we have given, he could not properly have ‘corrected’ the order which he had made in a wholly different capacity.’

Sir John Donaldson MR, Fox and Stephen Brown LJJ
[1984] 3 WLR 53, [1984] 1 QB 686, [1984] 2 All ER 705
England and Wales
Citing:
Appeal from – Regina v Cripps; Ex parte Muldoon QBD 1983
The election commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on an election petition. It was argued that he had had the power to . .

Cited by:
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .
Binding – The Conservative and Unionist Party v The Election Commissioner and Others Admn 19-Feb-2010
A local election result had been set aside for fraud in the winning Conservative candidate. The Commissioner made an order for costs against his party which was now challenged for lack of jurisdiction the Commissioner being functus officio, and the . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 13 December 2021; Ref: scu.654116