Category: Litigation Practice

Arts and Antiques Ltd v Richards and Others: ComC 5 Nov 2013

The court was asked whether the findings of a private arbitration could be relied upon as between other parties in an abuse of process argument.

Hamblen J
[2013] EWHC 3361 (Comm)
Bailii
England and Wales
Citing:
Cited – Rust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .

Cited by:
Cited – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, Contract

Updated: 25 November 2021; Ref: scu.517383

Winch v Jones: CA 1986

The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This in itself is an added protection of considerable value [over and above the ordinary strike out provisions]. As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of the process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the [Mental Health] Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed.’ and ‘To be more specific, there are two fundamental difficulties. First, mental patients are liable, through no fault of their own, to have a distorted recollection of facts which can, on occasion, become pure fantasy. Second, the diagnosis and treatment of mental illness is not an exact science and severely divergent views are sometimes possible without any lack of reasonable care on the part of the doctor.’

Sir John Donaldson MR
[1986] QB 296
Mental Health Act 1983 8139
England and Wales
Cited by:
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – Johnston v Chief Constable of Merseyside Police QBD 20-Nov-2009
The proposed claimant sought leave under the 1983 Act to bring an action for assault and false imprisonment, and further a disapplication of the limitation period to allow a claim out of time. The defendant said that the proposed claimant had been . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 25 November 2021; Ref: scu.226022

Alexander Bayne, Advocate v The Commissioners and Trustees for The Forfeited Estates: HL 13 Jan 1725

Temporary Jurisdiction in the Commissioners for the Forfeited Estates – By several acts of Parliament, the claims relative to forfeited estates, were to be entered before the commissioners by a day certain: in certain cases application was to be made to the Court of Session. A person mistaking his remedy, applied to the Court of Session, and obtained a judgment in his favour; but that was afterwards (among many others) annulled by the House of Lords, for want of jurisdiction; he then entered a claim before the trustees, which they refused to consider as not being entered within the time limited: and an appeal to the Court of Delegates was also refused, ‘leaving the petitioner in his circumstantiate case, to make application for redress to the proper powers.’ The judgment of the Court of Delegates is affirmed.

[1725] UKHL Robertson – 507, (1725) Robertson 507
Bailii
Scotland

Litigation Practice

Updated: 22 November 2021; Ref: scu.554113

PNM v Times Newspapers Ltd and Others: QBD 22 Oct 2013

The claimant had been arrested on allegations of serious child sex abuse. The court now considered an application for a continuation or cancellation of an interim non-disclosure order.
Held: The application for a non-disclosure order was dismissed, but the case was to remain anonymised pending any appeal. The court considered the balance between the diverging interests with an assessment of PNM’s interest in restricting the reporting of the trial. TSome of the public would inevitably equate suspicion with guilt and there was a risk that PNM and his family, including his children, would be subject to some unpleasant behaviour, possibly amounting to harassment. Not being a defendant in the trial, he would have no means of clearing his name if the media confined themselves to fair, accurate and contemporaneous reporting attracting absolute privilege. However, the significance of these was diminished by two factors. Members of the public generally will understand the difference between suspicion and guilt, and because of its public nature, some knowledge of what had been said about him at the trial would spread among those who knew him personally or by name, so that restrictions on press reporting would be of little if any benefit to him or his family. Indeed, the prohibition of media reporting might lead to the circulation of ill-informed or misleading versions of what was said that would aggravate PNM’s situation. By comparison, there was the highest public interest in the allegations of child abuse, which were the subject of continuing police investigations. The reports would be likely to make an important contribution to the knowledge of the public and to informed debate about the administration of justice. Publication might also encourage witnesses to come forward, or lend significance to the fact if they did not come forward.

Tugendhat J
[2013] EWHC 3177 (QB)
Bailii
Contempt of Court Act 1981 4(2)
England and Wales
Cited by:
Appeal from – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
At first instance – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 22 November 2021; Ref: scu.517013

Thevarajah v Riordan and Others: ChD 10 Oct 2013

The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9.

Andrew Sutcliffe QC
[2013] EWHC 3179 (Ch)
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
See Also – Thevarajah v Riordan and Others ChD 9-Aug-2013
The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously . .
Cited – Tarn Insurance Services Ltd v Kirby and others CA 27-Jan-2009
Claim by company in administration against former directors for excess payments alleged to have been taken by them. There was now alleged a wilful failure to comply wih court orders for disclosure..
Held: Once non-compliance with an unless . .

Cited by:
Appeal from – Thevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
See Also – Thevarajah and Another v Riordan and Others ChD 21-Mar-2014
The parties disputed the arrangements for the intended acquisition by the Claimant of three properties, or more accurately of all or part of the shares in their owning companies. Following a failure to comply with ‘unless’ orders fr disclsure of . .
See Also – Thevarajah v Riordan and Others CA 4-Feb-2015
The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds. . .
At first Instance (No 2) – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .

Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 22 November 2021; Ref: scu.516972

Alphasteel Ltd v Shirkhani and Another: CA 23 Oct 2013

The Court was asked whether the court should give permission, pursuant to CPR 31.22(1)(b), for the use of disclosed documents other than for the purpose of the proceedings in which they were disclosed, in circumstances where those proceedings have been settled before trial, the documents have not been read to or by the court or referred to at a hearing which has been held in public, and where the party who disclosed the documents and to whom they belong does not agree to their use in this manner.

Tomlinson, Gloster, Underhill LJJ
[2013] EWCA Civ 1272
Bailii
Civil Procedure Rules 31.22(1)(b)
England and Wales

Litigation Practice

Updated: 22 November 2021; Ref: scu.516947

Subotic v Knezevic: QBD 14 Oct 2013

Applications as to whether: (a) there should be an adjournment of 4 weeks to enable the Claimant’s new legal representatives to have more time to advise the Claimant, to prepare for the hearing, and to consider further re-re-amendments to the Particulars of Claim; (b) the Claimant should be permitted to re-re-amend the Particulars of Claim in the form of the draft prepared by his former legal representatives, as further amended during the hearing; and (c) the claim should be dismissed as a Jameel abuse of process.

Dingemans J
[2013] EWHC 3011 (QB)
Bailii

Defamation, Litigation Practice

Updated: 22 November 2021; Ref: scu.516606

PNPF Trust Company Ltd (Pilots’ National Pension Fund, Trustee of) v Taylor and Others: ChD 10 Jul 2009

Application to be joined to proceedings

Proudman J
[2009] EWHC 1693 (Ch), [2009] Pens LR 263, [2009] PLR 263, [2009] WTLR 1215
Bailii
England and Wales
Citing:
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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 November 2021; Ref: scu.347721

Brownlow Lord Brownlow v James Devie, Clerk: PC 2 Jul 1782

Under what circumstances a new trial of an issue, directed to try a vicar’s right to tithes, ought to be refused, especially where the greatest and most material part of the evidence is in writing, of which the court directing the issue was a proper judge, and where there is no reason to suppose that any further light can be thrown upon it by another reference to a jury.

[1782] EngR 89, (1782) 7 Bro PC 83, (1782) 3 ER 55
Commonlii
Commonwealth

Ecclesiastical, Litigation Practice

Updated: 22 November 2021; Ref: scu.372437

Greenwich Ltd v National Westminster Bank Plc and Others: ChD 13 Apr 1999

It is permissible for a court to order security for costs to be paid against a plaintiff limited company incorporated out of the jurisdiction, provided it appeared just to do so. There is no need to satisfy the apparent requirements of the Companies Acts.
Residence in the Channel Islands or the Isle of Man will satisfy the condition of foreign residence.

Times 13-Apr-1999, Gazette 06-May-1999, [1999] 2 Lloyds Rep 308
Companies Act 1985 726, Rules of the Supreme Court Order 23 r 1(1)(a)
England and Wales
Cited by:
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 22 November 2021; Ref: scu.81018

Keary Developments v Tarmac Constructions: CA 1995

The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant circumstances.
2. The possibility or probability that the plaintiff company will be deterred from pursuing its claim by an order for security is not without more a sufficient reason for not ordering security. It is implicit that a company may have difficulty meeting an order.
3. The court must balance the injustice to the plaintiff prevented from pursuing a proper claim against the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds himself unable to recover his costs. The power must neither be used for oppression by stifling a claim particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff’s impecuniosity, nor as a weapon for the impecunious company to put pressure on a more prosperous company.
4. The court will look to the prospects of success, but not go into the merits in detail.
5. In setting the amount it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.
6. Before refusing security the court must be satisfied that, in all the circumstances, the claim would be stifled. This might be inferred without direct evidence, but the court should also allow that external resources might be available.
7. The lateness of the application can properly be taken into account.
Peter Gibson LJ: ‘The court will properly be concerned not to allow the power to order security to be used as an instrument of oppression such as by stifling a genuine claim by an indigent company against a more prosperous company. But it will also be concerned not to be so reluctant to order security that it becomes a weapon whereby the impecunious company can use its inability to pay costs as a means of putting unfair pressure on the more prosperous company’.
And ”Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that a claim would be stifled . . the court should consider not only whether the plaintiff company can provide security either from its own resources to continue the litigation, but also whether it can raise the money needed from its directors, shareholders or other backers or interested investors. As this is likely to be peculiarly within the knowledge of the plaintiff company, it is for the plaintiff to satisfy the court that it would be prevented by an order for security from continuing the litigation.’

Peter Gibson LJ
[1995] 3 All ER 534
England and Wales
Citing:
Cited – Farrer v Lacy, Hartland and Co 1885
The court will seek not to allow the power to order security for costs to be used as an instrument of oppression, by stifling a genuine claim by an indigent company against a more prosperous company, particularly when the failure to meet that claim . .
Cited – Okotcha v Voest Alpine Intertrading GmbH CA 1993
When deciding whether to order security for costs, the possibility or probability that the plaintiff company will be deterred from pursuing its claim is not the sole deciding factor. . .
Cited – Roburn Construction Ltd v William Irwin (South) and Co Ltd 1991
When making an order for security for costs, the court will normally order a substantial sum, but need not. . .
Cited – Sir Lindsay Parkinson and Co Ltd v Triplan Ltd CA 1973
The court exercises a full discretion when ordering security for costs.
Where a plaintiff who is ordinarily resident out of jurisdiction has no assets within it, he or she may still yet convince the court against ordering security for costs if . .
Cited – Trident International Freight Services Ltd v Manchester Ship Canal Co 1990
There was evidence that the plaintiff was no longer trading, and that it had previously received support from another company which was a creditor of the plaintiff company and therefore had an interest in the plaintiff’s claim continuing. The court . .
Cited – Porzelack KG v Porzelack (UK) Ltd 1987
When considering an application for security for costs against a litigant resident in the EU, the courts must allow for the new additional scope for enforcement of any judgment under the 1982 Act. In this case, an order for security for costs . .
Cited – Pearson v Naydler 1977
That the statute required it to be likely that a company might find it difficult to pay costs before allowing a requirement for security for costs, indicated that an order may be expected to cause difficulty. However the court will not allow an . .

Cited by:
Applied – Danemark Limited v BAA Plc CA 16-Oct-1995
The defendant had obtained an order or additional security for costs against the defendant company (registered with andpound;100 share capital) under the section. It appealed. There was evidence to suggest some fraud by the plaintiff, but also that . .
Cited – Al-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Spy Academy Ltd v Sakar International Inc CA 23-Jul-2009
Claimant’s appeal against order for security for costs. An order had been returned having been sent to the correct address, but to the wrong person, it was returned. On the claimant appearing by its director the judge made the order.
Held: The . .
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 22 November 2021; Ref: scu.183481

Jalla and Another v Shell International Trading and Shipping Co Ltd and Another (Appeal 3: Refusal To Extend Time): CA 28 Oct 2021

Appeal from refusal to extend time further to allow more of the claimants in these two actions to serve Date of Damage Pleadings
Otherwise: Jalla -v- Shell International (no.3)

Lord Justice Coulson
[2021] EWCA Civ 1559
Bailii, Judiciary
England and Wales

Litigation Practice

Updated: 22 November 2021; Ref: scu.668914

Covanta Energy Ltd v Merseyside Waste Disposal Authority: TCC 26 Sep 2013

Coulson J summarised the principles when assessing wether damages might be inadequate as a remedy and interim injunction should be granted: ‘(a) If damages are an adequate remedy, that will normally be sufficient to defeat an application for an interim injunction, but that will not always be so. (American Cyanamid, Fellowes, National Bank);
(b) In more recent times, the simple concept of the adequacy of damages has been modified at least to an extent, so that the court must assess whether it is just, in all the circumstances, that the claimant be confined to his remedy of damages (as in Evans Marshall and the passage from Chitty);
(c) If damages are difficult to assess, or if they involve a speculative ascertainment of the value of a loss of a chance, then that may not be sufficient to prevent an interim injunction (Araci);
(d) In procurement cases, the availability of a remedy of review before the contract was entered into, is not relevant to the issue as to the adequacy of damages, although it is relevant to the balance of convenience (Morrisons).
(e) There are a number of procurement cases in which the difficulty of assessing damages based on the loss of a chance and the speculative or ‘discounted’ nature of the ascertainment, has been a factor which the court has taken into account in concluding that damages would not be an adequate remedy (Letting International, Morrisons, Alstom, Indigo Services, and Metropolitan Resources). There are also cases where, on the facts, damages have been held to be an adequate remedy and the injunction therefore refused (European Dynamics, Exel)’

Coulson J
[2013] EWHC 2922 (TCC)
Bailii
Cited by:
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 21 November 2021; Ref: scu.516363

Mathew v HM Attorney General: Admn 9 Oct 2013

Application for discharge of order declaring him to be a vexatios litigant.
Held: ‘ it ought to be for the applicant on a case by case basis to satisfy a court that any proposed new litigious activity on his behalf is justifiable and has a reasonable prospect of success. This is after all scarcely different from the burden placed on all claimants who wish to bring proceedings for judicial review. It is not disproportionate, in the circumstances of this case, to require him to continue under that limited fetter placed on his right to litigate and I would dismiss this application.’

Moses LJ, Mackay J
[2013] EWHC 3009 (Admin)
Bailii

Litigation Practice

Updated: 21 November 2021; Ref: scu.516325

Mitchell v News Group Newspapers Ltd: QBD 1 Aug 2013

The defamation claimant sought relief from sanctions imposed after a failure to comply with orders requiring him to discuss budgets and budgetary assumptions.
Held: The claimant had failed to deliver the required costs budget in time, and any costs in the action beyond the court fees would be disallowed.

Master McLoud
[2013] EWHC 2355 (QB)
Bailii
Civil Procedure Rules 3.9
England and Wales
Cited by:
Appeal from – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
See Also – Mitchell v News Group Newspapers Ltd QBD 27-Mar-2014
Application for discovery of documents held by a third party, the Police Complaints Commission) in a defamation action. . .
See Also – Mitchell v News Group Newspapers Ltd QBD 11-Jun-2014
. .
See Also – Mitchell v News Group Newspapers Ltd QBD 28-Jul-2014
The claimant MP had a bad tempered altercation with police officers outside Downing Street. He sued the defendant newspaper in defamation saying that they had falsely accused him of calling te officers ‘plebs’. One officer now sued the MP saying . .
See Also – Mitchell v News Group Newspapers Ltd QBD 31-Oct-2014
The claimant alleged defamation by the defendant. In the second action, the policeman claimant alleged defamation by the first claimant. The court heard applications as to the admission of expert evidence, and as to the inclusion or otherwise of . .
See Also – Mitchell v News Group Newspapers Limited QBD 27-Nov-2014
. .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 21 November 2021; Ref: scu.516223

Money v AB: ChD 10 Nov 2021

Anonymity – balance in favour of open justice

Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do not of themselves mean that anonymity should be granted. Rather, it is necessary to consider all of the circumstances of the case, and balance the competing interests of the Defendant, on the one hand, and the public interest in open justice, on the other.’

Mrs Justice Bacon
[2021] EWHC 2999 (Ch)
Bailii
England and Wales
Citing:
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – HM Revenue and Customs v Banerjee (No 2) ChD 19-Jun-2009
The court was asked whether the taxpayer dermatologist could deduct the expenses of attending educational courses, conferences and meetings, including associated costs of travel and accommodation.
Held: She could.
The defendant requested . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon Admn 26-Mar-2021
Conditions for Anonymity Orders
The claimant sought judicial review of the Defendant’s failure to provide suitable accommodation under its duty under section 193(2) of the 1996 Act. The Defendant admitted breach of its statutory duty because the accommodation that it was providing . .
Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Cited – Zeromska-Smith v United Lincolnshire Hospitals NHS Trust QBD 8-Mar-2019
The Claimant sought damages for psychiatric injury arising out of the stillbirth of her daughter, and contended that if distressing details about the stillbirth and her subsequent mental illness were publicly reported, then that would further damage . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 20 November 2021; Ref: scu.669820

NML Capital Ltd v Chapman Freeborn Holdings Ltd and Others: CA 23 May 2013

This appeal examined the scope of the Norwich Pharmacal jurisdiction in the context of an attempt by a judgment creditor to enforce a judgment against a judgment debtor determined to resist enforcement. If successful, it would, in the words of Longmore LJ in granting permission to appeal: ‘be the first case in which a bona fide company doing business with a judgment debtor would find itself on the receiving end of a Norwich Pharmacal order merely to assist a judgment creditor in enforcing his or her judgment.’

Kackson, Tomlinson, Floyd LJJ
[2013] EWCA Civ 589, [2013] 1 CLC 968
Bailii
England and Wales

Litigation Practice

Updated: 19 November 2021; Ref: scu.515000

Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2): HL 1988

Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission’. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties.
Held: The documents were supplied with the authority of the ITC.
Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: ‘Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.’

Lord Bridge of Harwich
[1988] 1 WLR 16
Vienna Convention on Diplomatic Relations 24 27, International Tin Council (Immunities and Privileges) Order 1972
England and Wales
Citing:
At First Instance – Maclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Evidence

Updated: 19 November 2021; Ref: scu.510791

MacFoy v United Africa Company Limited (West Africa): PC 27 Nov 1961

Service Outside Rules – Irregular not a Nullity

The act of delivery of a statement of claim in the long vacation of the Supreme Court of Sierra Leone was only voidable and not void; it was only an irregularity and not a nullity.
Lord Denning said: ‘The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.’ No Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but a useful one was whether, if ‘the other side waived the flaw in the proceedings or took some fresh step after knowledge of it . . [c]ould he afterwards in justice complain of the flaw?’ If the other side could complain despite the subsequent step, the ‘flaw’ was a nullity.

Lord Denning
[1961] UKPC 49, [1962] AC 152, [1961] 3 All ER 1169
Bailii
Commonwealth

Litigation Practice

Updated: 19 November 2021; Ref: scu.445332

Jenkins v Livesey (formerly Jenkins): HL 1985

The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however became engaged to a new partner before the consent order was made, and remarried two days after. Disclosure had been given, but the House was now asked whether there remained a continuing duty to disclose material changes which occurred after the disclosure but before a consent order was made, and if such a duty existed, what effect that had on the order itself.
Held: There is an enhanced duty of full and frank disclosure upon legal professionals acting in family proceedings, and particularly in ancillary relief proceedings. The duty continued after disclosure until any final order was made. W was under a continuing duty to disclose the fact of her engagement as soon as it took place. Her failure was relevant to the validity of the consent order, and since the undisclosed fact undermined the basis of the consent order, the order was set aside

Lord Hailsham LC, Lord Scarman, Lord Keith, Lord Bridge, Lord Brandon
[1985] AC 424, [1984] UKHL 3, [1985] FLR 813, [1985] 1 All ER 106, [1985] 2 WLR 47
Bailii
England and Wales
Citing:
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Criticised in part – Wales v Wadham FD 1977
H and W agreed a consent order following a divorce under which H was to pay W andpound;13,000 from his half-share of the matrimonial home in settlement of W’s claims for financial provision for herself. Both consulted solicitors and the agreement . .
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Tommey v Tommey FD 1983
W asked the court to set aside a consent financial relief order. She was to transfer her half of the home to H, in return for andpound;8,000 paid by H in settlement of her financial provision. She said that in the negotiations leading up to the . .
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Cited – Practice Direction (Family Division: Financial Statement) 1984
The decision of the Court of Appeal in Jenkins v. Livesey (formerly Jenkins) … is a reminder that in all cases where application is made for a financial provision or property adjustment order the court is required to have before it an agreed . .

Cited by:
Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
Cited – Wyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
Cited – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Sharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 19 November 2021; Ref: scu.187045

Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers Mandatory to attempt an out-of-court settlement

K. Lenaerts, P
[2010] EUECJ C-318/08, C-318/08
Bailii
Directive 2002/22/EC
Citing:
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .

Cited by:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514426

Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers Mandatory to attempt an out-of-court settlement)

K Lenaerts, P
[2010] EUECJ C-319/08, C-319/08
Bailii
Directive 2002/22/EC
Citing:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514427

Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and providers – Mandatory to attempt an out-of-court settlement

K. Lenaerts, P
[2010] EUECJ C-317/08, C-317/08, [2010] ECR I-221, [2010] 3 CMLR 17
Bailii
Directive 2002/22/EC
Citing:
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .

Cited by:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514425

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 falsified documentation in discovery. The forgery was admitted.
Held: If a party to litigation behaved in such a way as make it impossible safely to grant a judgment in his favour, or, where the behaviour amounted to an abuse of the processes of the court, the court must decline to allow that party to be heard, and to give judgment against him. The object of the rules of discovery was to secure a fair trial. A failure in disclosure might normally not defeat a claim, but a determined attempt to prevent a fair trial should do so: ‘A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather it is a proper and necessary response where a party has shown that his object is not to have a fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.’
As to pre-CPR cases: ‘The old authorities are of interest only as the straws in the gale force winds of change which blew in Lord Woolf’s reforms.’ and ‘The attempted perversion of justice is the very antithesis of parties coming before the court on an equal footing. ‘
Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was ‘hijacked’ by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners’ case occupied far more of the court’s time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court.
In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents – and in the interests of the administration of justice generally – to allow the trial to continue. If he had considered that question, then – as it seems to me – he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.’

Roch, Ward, Chadwick LJJ
Times 07-Jul-2000, [2000] CP Rep 59, [2000] EWCA Civ 200, [2001] BCC 591, [2000] BCLC 167, [2000] WL 775004
Bailii
Companies Act 1985 459
England and Wales
Citing:
Appeal from – 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 – In re Saul D Harrison and Sons plc CA 1995
The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power . .
Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
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 – 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 . .
Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Cited – UCB Corporate Services Ltd (formerly UCB Bank plc) v Halifax (SW) Ltd CA 6-Dec-1999
It was proper to strike out a claim for abuse of process where the party had been involved in a wholesale disregard of the Civil Procedure Rules and of court orders. The court has a range of remedies appropriate to the degree of such disregard. . .
Cited – Purdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Arbuthnot Latham Bank Limited; Nordbanken London Branch v Trafalgar Holdings Limited; Ashton and Ashton CA 16-Dec-1997
The issue was the appropriateness of a Court striking an action out where there has been considerable delay if: (i) the cause of action relied upon by the plaintiff in the proceedings would be statute barred if the action were to be struck out, but . .
Cited – Choraria v Sethia CA 15-Jan-1998
Inordinate and inexcusable delay flouting court rules could itself constitute abuse of process irrespective of the absence of prejudice. A ‘complete, total or wholesale disregard, put it how you will, of the Rules of Court … is capable of . .
Cited – Miles v Mcgregor CA 23-Jan-1998
Increase in findings of inordinate delay accompanied increased reluctance to strike out in absence of established prejudice to other party: ‘The abuse of process route is for cases … when the conduct amounts to an affront to the court and its . .
Cited – Lace Co-Ordinates Ltd v Nem Insurance Co Ltd CA 19-Nov-1998
Referring to the new Civil Procedure Rules: ‘These guidelines … create an entirely new climate in which the court is required to examine the plaintiff’s conduct by reference to the overall interests of justice and fairness (including . .
Appeal From – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .

Cited by:
Cited – Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
See Also – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .
Cited – Ridsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
See Also – Arrow Nominees Inc and others v Blackledge and others CA 28-Feb-2002
. .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Shah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Secretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
See Also – Arrow Nominees Inc and Another v Blackledge and others CA 13-Jul-2004
. .
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 – Summers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
Cited – 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 . .
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 . .
Cited – Emuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 19 November 2021; Ref: scu.77874

Bredenkamp, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 9 Aug 2013

Application for disclosure and further information from the Secretary of State for Foreign and Commonwealth Affairs in interim applications made in proceedings for judicial review.

Dingemans J
[2013] EWHC 2480 (Admin)
Bailii
England and Wales

Litigation Practice

Updated: 18 November 2021; Ref: scu.514336

Caterpillar (NI) Ltd v John Holt and Company (Liverpool) Ltd: CA 13 Jun 2013

Series of applications in relation to a pending appeal

Tomlinson LJ
[2013] EWCA Civ 779
Bailii
England and Wales
Citing:
At ComC – FG Wilson (Engineering) Ltd v John Holt and Company (Liverpool) Ltd ComC 5-Sep-2012
. .

Cited by:
Directions – Caterpillar (NI) Ltd v John Holt and Company (Liverpool) Ltd CA 17-Oct-2013
The defendant (Holt) appealed against the grant of summary judgement given against it in a claim for non-payment of sums due under a distributorship agreement with the claimants. Goods had been agreed to be sold and were delivered by F G Wilson to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 18 November 2021; Ref: scu.514232

JSC BTA Bank v Ablyazov: CA 25 Jul 2013

The claimant bank had an asset freezing order in place over the assets of the defendant. The defendant had in place loan facilities allowing him to draw down substantial amounts as chosen. The claimant appealed from refusal of a declaration that the defendants rights under an unsecured loan contract to draw funds should not be seen as part of the defendant’s assets for the purposes of t he freezing order.
Held: The appeal failed. Such an item was part of the relevant background and context, even though such a chose in action could not be subject to execution. A person entitled to borrow and doing ‘was not ordinarily to be described as disposed of or dealing with an asset’.
Beatson LJ identified three relevant principles: (i) the enforcement principle, namely that ‘the purpose of a freezing order is to stop the injuncted defendant dissipating or disposing of property which could be the subject of enforcement if the claimant goes on to win the case it has brought, and not to give the claimant security for his claim’; (ii) the flexibility principle, namely that ‘the jurisdiction to make a freezing order should be exercised in a flexible and adaptable manner so as to be able to deal with new situations and new ways used by sophisticated and wily operators to make themselves immune to the courts’ orders or deliberately to thwart the effective enforcement of those orders’; and (iii) the strict construction principle, namely that, because the consequences of breach are serious, injunctions must be ‘clear and unequivocal’ and ‘strictly construed’ in favour of the addressee. He held that there were tensions between his three principles. He discussed whether there was a principled objection to the recognition of the rights under the loan facility agreements as assets for the purposes of a freezing injunction and concluded that the answer was no. He considered (a) whether the terms of the current standard Commercial Court form of freezing order make choses in action such as those under the Loan Agreements ‘assets’ within the order and (b) if so, whether drawing down a loan amounts to disposing of, dealing with or diminishing the value of the assets. Beatson LJ concluded that the answer to both questions was ‘No’ and that the appeal should be dismissed.

Rimer, Beatson, Floyd LJJ
[2013] EWCA Civ 928, [2013] WLR(D) 305, [2013] 2 CLC 286, [2014] 1 WLR 1414, [2014] 1 All ER (Comm) 700, [2014] 1 Lloyd’s Rep 195
Bailii, WLRD
England and Wales
Citing:
Appeal from – JSC BTA Bank v Ablyazov and Others ComC 4-Jul-2012
The bank had obtained a freezing order. The defendants had claimed four substantial loan agreements, but the Bank asserted that these were shams. The first defendant had been found guilty of contempt, and now seemed to have fled the country. . .

Cited by:
Appeal from – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.513695

Mentmore International Ltd and Others v Abbey Healthcare (Festival) Ltd and Another: CA 7 Jul 2010

On an application for summary judgment the court must consider whether the case has a real as opposed to a fanciful prospect of success.

Arden, Carnwath LJJ, Morgan J
[2010] EWCA Civ 761
Bailii
England and Wales
Cited by:
Cited – Allen v Bloomsbury Publishing Plc and Another ChD 14-Oct-2010
The claimant sought damages alleging breach of copyright by the defendant author saying she had copied large parts of the claimant’s work in her book ‘Harry Potter and the Goblet of Fire’. The defendant now sought summary judgment, saying the action . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.420389

Perry v Truefitt: 5 Jul 1844

[1844] EngR 740 (A), (1844) 6 Beav 418
Commonlii
England and Wales
Citing:
See Also – Perry v Truefitt CA 8-Dec-1842
The court considered the nature of the tort of passing off. ‘I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.305332

Moofti Mohummud Ubdoollah And Another v Baboo Mootechund: 10 Feb 1837

Two suits having been brought for sums due on the same account, each of which was under 50,000 rupees, or 5000 pounds held that such suits could not be consolidated for the purpose of appeal, though the original severance of them was contrary to the Plaintiff’s instructions, and the aggregate amount of both exceeded that amount.

[1837] EngR 498, (1837) 1 Moo Ind App 363, (1837) 18 ER 148
Commonlii
England and Wales

Litigation Practice

Updated: 17 November 2021; Ref: scu.313615

Bourne v Keane: HL 1919

Gift for Masses not Void for Superstition

An Irish Roman Catholic testator, domiciled in England, bequeathed 200 pounds to Westminster Cathedral for masses, and 200 pounds and his residuary personal Estate to the Jesuit Fathers of Farm Street, again for masses. The next of kin contended that the bequests to the Jesuit Fathers were void under Roman Catholic Relief Act 1829, as gifts to a monastic order.
Held: A bequest of personal Estate for masses for the dead is not void as a gift to superstitious uses. The contention of the next of kin as to the requests of the Jesuit Fathers failed per Lord Atkinson), for insufficiency of evidence as to the Constitution of the community and (Lord Birkenhead Chancellor) on the further ground that the point was not raised by the text by the next of kin in their cases, and (per Lord Buckmaster) because these bequests were giving not to a monastic order but to individual members of a particular order resident at a named place, and were impressed with no trust for the benefit of the order.
Lord Buckmaster discussed the construction of statutes and said: ‘Firstly, the construction of a statute of doubtful meaning, once laid down and accepted for a long time, ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience.
Secondly, that decisions upon which title to property depends, or which by establishing principles of construction or otherwise form the basis of contracts, ought to receive the same protection;
Thirdly, decisions that affect the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed, or exemption unlawfully obtained, payments needlessly made, or the position of the public materially affected, ought in the same way to continue.’

Lord Birkenhead Chancellor, Lord Buckmaster, Lord Atkinson
[1919] AC 815
Roman Catholic Relief Act 1829
England and Wales
Cited by:
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Cited – Gilmour v Coats HL 1949
Prayers Alone did not make Convent Charitable
A trust to apply the income of a fund for all or any of the purposes of a community of Roman Catholic Carmelite nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.196845

Braddock v Tillotsons Newspapers Ltd: CA 1949

Tucker LJ
[1949] 2 All ER 306, [1950] 1 KB 47
England and Wales
Cited by:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.182555

Elite Property Holdings Ltd and Others v Bdo Llp: ComC 20 Jul 2020

The three Claimant companies asserted that they have sustained loss and damage by reason of an unlawful means conspiracy between B and the Defendant accountants BDO, which led to B foreclosing on various loans made to the Claimants. BDO applies to strike out this claim on each of three grounds, contending: i) that the claim is an abuse of process, because an earlier claim (which I shall call ‘the Barclays claim’) was brought by two of the Claimants against BDO’s alleged co-conspirator Barclays, alleging the same or a very similar conspiracy;
ii) that the claim constitutes an impermissible collateral attack on various findings made in that, earlier, Barclays claim; and is for that reason an abuse of process;
iii) that the statement of case discloses no reasonable grounds for bringing the claim cause of action, and/or that the claim has no real prospect of success, so that it should be struck out, or summary judgment should be granted in the Defendant’s favour.

Nicholas Vineall QC sitting as a Deputy High Court Judge
[2020] EWHC 1937 (Comm)
Bailii
England and Wales

Torts – Other, Litigation Practice

Updated: 17 November 2021; Ref: scu.652967

Tchenguiz and Another v Rawlinson and Hunter Trustees Sa and Others: QBD 18 Jul 2013

The claimants alleged that the effect of the searches, arrests and investigation and the publicity surrounding them had a disastrous effect on their business interests causing very extensive financial losses and reputational harm; and they now seek damages in these proceedings in the total sum of approximately andpound;300 million. The court now considered applications for orders for disclosure of documents obtained by the defendant under the 1987 Act.

Eder J
[2013] EWHC 2128 (QB), [2014] 1 WLR 147, [2013] WLR(D) 302
Bailii, WLRD
Criminal Law Act 1987
England and Wales

Torts – Other, Litigation Practice

Updated: 17 November 2021; Ref: scu.513400

XXX v Camden London Borough Council: CA 11 Nov 2020

Anonymity in Court Proceedings – No two stage test

XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought proceedings for judicial review of the Council’s housing allocation policy, and evidence of aspects of her mental health condition were referred to. She maintained that continued publication was causing her further and continuing distress.
Held: The appeal failed. ‘when confronted with an application for anonymity pursuant to CPR 39.2(4), the Court should have regard to the relevant principles set out in the authorities referred to . . above, and carry out the balancing exercise of the relevant interests under CPR 39.2 to determine whether ‘non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness’. This is what the judge did below.’
and: ‘Further I do not accept that the provisions of section 166(4) of the Housing Act 1996 require this Court to come to a different result from that reached by the judge. Section 166(4) prevents the disclosure, without consent, of the fact that a person is an applicant for an allocation of housing accommodation. This is for understandable reasons given the scarcity of housing accommodation, and the need for applicants sometimes to satisfy detailed medical requirements which have been imposed by councils to form a basis for allocating accommodation. However Parliament did not extend the section to provide anonymity to claimants seeking judicial review of decisions made by the councils about the allocation of housing accommodation.’

McCombe, Moylan, Dingemans LJJ
[2020] EWCA Civ 1468, [2020] WLR(D) 610, [2020] 4 WLR 165, [2021] EMLR 9, [2021] HLR 13
Bailii, WLRD
European Convention on Human Rights, Civil Procedure Rules 39.2
England and Wales
Citing:
Cited – Ward and Others, Regina (on The Application of) v The London Borough of Hillingdon and Others CA 16-Apr-2019
Challenge to housing policy as discriminatory against Irish travellers or Kurdish refugees. . .
Cited – Zeromska-Smith v United Lincolnshire Hospitals NHS Trust QBD 8-Mar-2019
The Claimant sought damages for psychiatric injury arising out of the stillbirth of her daughter, and contended that if distressing details about the stillbirth and her subsequent mental illness were publicly reported, then that would further damage . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – W v M (TOLATA Proceedings: Anonymity) FD 25-Jun-2012
Proceedings in the Family Division were anonymised after the proceedings had been compromised, even though an earlier application for anonymity had been refused. . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .
Cited – Yalland and Others v Secretary of State for Exiting The European Union (629) Admn 3-Feb-2017
Application for anonymity order – challenge to constitutionality of proposed steps in leaving the EU.
Held: Granted for those applying for it.
The common law rights of the public and press to know about court proceedings are also . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Moss v Information Commissioner CA 15-May-2020
This case concerns the principle of open justice and the application of orthodox principles to an application by a litigant for an anonymity order, namely, the balancing exercise between an individual’s Article 8 and 6 rights of the European . .
Cited – Kalma and Others v African Minerals Ltd and Others QBD 29-Jan-2018
A threshold of seriousness was required before the court will undertake a balance of the competing interests to decide whether to make an order for anonymity. . .
Cited – Moss v Information Commissioner CA 15-May-2020
This case concerns the principle of open justice and the application of orthodox principles to an application by a litigant for an anonymity order, namely, the balancing exercise between an individual’s Article 8 and 6 rights of the European . .
Cited – Suez Fortune Investments Ltd and Another v Talbot Underwriting Ltd and Others ComC 5-Nov-2018
Constructive total loss claim under a war risks policy on the vessel BRILLANTE VIRTUOSO which is being defended on the grounds that the vessel was ‘scuttled’ by her Owner. Disclosure of identity of witness: ‘ In considering an application for . .

Cited by:
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
Cited – Money v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 17 November 2021; Ref: scu.655577

MX v Dartford and Gravesham NHS Trust and Others: CA 17 Feb 2015

Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should have been made: ‘the following principles should apply:
(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;
(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an ‘anonymity order’);
(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;
(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;
(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;
(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.’
Moore-Bick VP LJ said: ‘Any application of the present kind, therefore, gives rise to tension between the principle of open justice and the need to do justice in the individual case; or, if the matter is considered in Convention terms, a question whether it is necessary to interfere with the rights of the public and the Press under article 10 in order to protect the rights of the claimant and his or her family under article 8 and vice versa. The constitutional importance of the principle of open justice, as recognised in the authorities, is such that any departure from it must be justified strictly on the grounds of necessity. The same may be said of the right to freedom of speech. In either case the test is one of necessity. Although that usually involves a decision based on the judge’s evaluation of the facts of the case before him, it is important to be clear that the decision does not involve an exercise of discretion. Accordingly, although this court will accord proper deference to the judge’s assessment, it will in an appropriate case consider the matter afresh and decide for itself whether the proposed derogation from the principle of open justice is indeed necessary. It follows from the fact that the test is one of necessity that in order to be justified the derogation must be the minimum that is consistent with achieving the ultimate purpose of doing justice in the instant case.’

Moore-Bick VP, Black, Lewison LJJ
[2015] WLR(D) 77, [2015] EWCA Civ 96, [2015] 1 WLR 3647
Bailii, WLRD
European Convention on Human Rights 14 10, Children and Young Persons Act 1933 39
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
evans_sfoQBD201502
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – MXB v East Sussex Hospitals NHS Trust QBD 20-Nov-2012
The claimant child invited the court to protect his identity in these proceedings by the making of an order under section 39 of the 1933 Act.
Held: The court described the limitations inherent in such order in modern conditions where the . .
Cited – JC and Another v The Central Criminal Court QBD 8-Apr-2014
The court was asked whether an order made under s. 39 of the 1933 Act, prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age . .
Appeal from – JXMX (A Child) v Dartford and Gravesham NHS Trust QBD 17-Dec-2013
The court asked whether it should make an order that the claimant be identified by letters of the alphabet, and that there be other derogations from open justice (an anonymity order), in a claim for personal injuries by a child or protected party . .

Cited by:
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – Money v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights, Children

Updated: 17 November 2021; Ref: scu.542930

Zeromska-Smith v United Lincolnshire Hospitals NHS Trust: QBD 8 Mar 2019

The Claimant sought damages for psychiatric injury arising out of the stillbirth of her daughter, and contended that if distressing details about the stillbirth and her subsequent mental illness were publicly reported, then that would further damage her mental health and her relationships with her family.
Held: The Court refused to grant an anonymity order to a mother in a clinical negligence case claiming psychiatric injury following the stillbirth of her first child. While the judgment recorded that the case would involve ‘exploration of intimate details of the Claimant’s private and family life, her psychiatric condition and her relationship with her two young children’, an anonymity order was nevertheless refused on the basis that those considerations did not outweigh the open justice principle and the interests of the press in reporting the proceedings.

Martin Spencer J
[2019] EWHC 552 (QB), [2019] Med LR 250
Bailii
England and Wales
Cited by:
See Also – Zeromska-Smith v United Lincolnshire Hospitals NHS Trust QBD 16-Apr-2019
The Claimant seeks damages for psychiatric injury arising out of the stillbirth of her daughter. Breach of duty is admitted, as is some damage arising out of the breach of duty. In those circumstances, judgment has been entered for the Claimant and . .
Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
Cited – Money v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 November 2021; Ref: scu.634343

Imam, Regina (on The Application of) v The London Borough of Croydon: Admn 26 Mar 2021

Conditions for Anonymity Orders

The claimant sought judicial review of the Defendant’s failure to provide suitable accommodation under its duty under section 193(2) of the 1996 Act. The Defendant admitted breach of its statutory duty because the accommodation that it was providing was not suitable. The parties now disputed the relief: she contended that a mandatory order should be made requiring the Defendant to provide suitable accommodation to her. The Claimant also raised other challenges, including alleged breaches of the Equality Act and an allegation of unlawfully failing to determine the Claimant’s request to be given Band 1 priority under the Defendant’s housing allocation scheme.
The reasonable adjustments duty involves disciplined sequence of steps, a ‘stepped approach’.

Deputy Judge Mathew Gullick QC
[2021] EWHC 739 (Admin)
Bailii
Housing Act 1996 193(2), Equality Act 2010
England and Wales
Citing:
See Also – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .

Cited by:
See Also – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
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 . .
Cited – Money v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Housing, Discrimination, Litigation Practice

Updated: 17 November 2021; Ref: scu.660061

Grimshaw v Dunbar: CA 1953

A tenant wanted to defend a possession claim brought by his landlord for rent arrears. Having discharged the arrears, he was told by court staff that he need not attend the hearing. He didn’t and the possession order was made in his absence. he sought to set it aside, asking for a re-trial. That application was dismissed but he appealed.
Held: His appeal succeeded. The court set out the applicable principles. Jenkins LJ mentioned three factors which he regarded as ‘some of the main considerations’ that a judge exercising a discretion whether or not to re-instate struck-out proceedings should take into account.
The court should consider why the litigant had failed to appear, referring to ‘the undisputed statement of the tenant . . that his absence was due to the wrong advice . . from one of the officials of the court’ The official had ‘unwittingly misled him’. Second, the court should consider any undue delay by the absent party in seeking re-instatement. Third, the court should ask itself whether the other party would be prejudiced by the re-instatement of the proceedings. Morris LJ and Roxburgh J agreed.
Morris LJ,: ‘it seems to me that the tenant showed a very compelling explanation for his non-attendance at the hearing . . He had never been heard: his case had never been before the judge. This was not the fault of the landlord; but in the particular circumstances the tenant had this rather unusual but satisfactory explanation, the accuracy of which was apparently not doubted. That being so, is seems to me that, in the absence of some very good reason, the application for a new trial should have been acceded to; and I think further that, in the absence of some such good reason, not to accede to the application involved proceeding on a wrong principle in such as way as to amount to an error in law.’ and ‘ . . if . . it is quite manifest to a judge that there is really nothing to be tried, or if there are some special circumstances which make it clear that on a rehearing the same result as that already announced must again be reached, then it may well be that a judge could refuse an application.’
Jenkins LJ also referred to ‘a more debatable point’, namely, ‘how far the judge should consider the prospects of success’ of the party applying for the re-instatement of the proceedings, saying: ‘ . . a new trial should seldom, if ever, be refused merely on the ground that the applicant’s case appears to be a weak one . . ‘ and ‘ . . common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case . . ‘

Jenkins LJ, Morris LJ and Roxburgh J
[1953] 1 QB 408, (1953) 1 All ER 350
England and Wales
Cited by:
Cited – Gaydamak and Another v UBS Bahamas Ltd and Another PC 28-Feb-2006
(Bahamas) The appellant sought re-instatement of their case which had been struck out for their non-attendance at the hearing. The court had said it would not be listed.
Held: Where a blameless absent litigant whose case has been struck out is . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 November 2021; Ref: scu.240167

Derby and Co Ltd And Others v Weldon And Others (No 10): CA 1991

A document had been disclosed by mistake.
Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
There is a crucial difference between a mere indication that one has sought or received legal advice, and the disclosure of its contents.

Vinelott J
[1991] 1 WLR 660, [1991] 2 All ER 908
England and Wales
Citing:
See Also – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
See Also – Derby and Co Ltd v Weldon (Nos 3 and 4) CA 1990
The plaintiff had obtained an asset freezing order against a defendant Panamanian Company, which now appealed saying that it was inappropriate to make such an order where the company had no assets in the jurisdiction.
Held: The appeal failed. . .
See Also – Derby and Co Ltd And Others v Weldon And Others (No 9) ChD 25-Jul-1990
The court considered the application of rules relating to the discovery of documents to material held on computer: ‘the database of a computer, so far as it contained information capable of being retrieved and converted into readable form, and . .
See Also – Derby and Co v Weldon CA 2-Aug-1988
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be . .
See Also – Derby v Weldon (No. 3) ChD 7-Nov-1988
The plaintiff alleged conspiracy to defraud in a sum in excess of andpound;25m. During the application for a freezing order the stance of the defendant had been one of ‘taciturnity’ and non-disclosure. But on the last day of the hearing it was said . .
See Also – Derby and Co v Weldon (No2) CA 2-Jan-1989
The plaintiff appealed against the refusal of a world-wide Mareva injunction.
Held: The appeal succeeded. Lord Donaldson of Lymington MR said: ‘We live in a time of rapidly growing commercial and financial sophistication and it behoves the . .
See Also – Derby and Co v Weldon (No 6) CA 3-Jan-1990
The court considered its power to order transfer of assets from one jurisdiction (in this case Switzerland) to another in aid of a Mareva injunction.
Held: An order that assets be delivered or transferred to a receiver was a usual one.
See Also – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .

Cited by:
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 November 2021; Ref: scu.240161

Warren v Mendy: CA 1989

A boxing manager and promoter sought injunctive relief to restrain the defendant from interfering with a management contract between himself and B, a talented young boxer, and from acting for B in B’s professional career. B was at his request joined to the proceedings. An injunction was refused at first instance.
Held: No injunction would be granted.
Nourse LJ said: ‘It is well settled that an injunction to restrain a breach of contract for personal services ought not to be granted where its effect will be to decree performance of the contract. Speaking generally, there is no comparable objection to the grant of an injunction restraining the performance of particular services for a third party, because, by not prohibiting the performance of other services, it does not bind the servant to his contract. But a difficulty can arise, usually in the entertainment or sporting worlds, where the services are inseparable from the exercise of some special skill or talent, whose continued display is essential to the psychological and material, and sometimes to the physical, well being of the servant. The difficulty does not reside in any beguilement of the court into looking more tenderly on such who breach their contracts, glamorous though they often are. It is that the human necessity of maintaining the skill or talent may practically bind the servant to the contract, compelling him to perform it.’ and ‘This consideration of the authorities has led us to believe that the following general principles are applicable to the grant or refusal of an injunction to enforce performance of the servant’s negative obligations in a contract for personal services inseparable from the exercise of some special skill or talent. (We use the expressions ‘master’ and ‘servant’ for ease of reference and not out of any regard for the reality of the relationship in many of these cases.) In such a case the court ought not to enforce the performance of the negative obligations if their enforcement will effectively compel the servant to perform his positive obligations under the contract. Compulsion is a question to be decided on the facts of each case, with a realistic regard for the probable reaction of an injunction on the psychological and material, and sometimes the physical, need of the servant to maintain the skill or talent. The longer the term, for which an injunction is sought, the more readily will compulsion be inferred. Compulsion may be inferred where the injunction is sought not against the servant but against a third party if either the third party is the only other available master or if it is likely that the master will seek relief against anyone who attempts to replace him. An injunction will less readily be granted where there are obligations of mutual trust and confidence, more especially where the servant’s trust in the master may have been betrayed or his confidence in him has genuinely gone.’

Nourse LJ
[1989] 1 WLR 853
England and Wales
Citing:
Cited – In re Regent Hotels (UK) Ltd v Pageguide Ltd CA 10-May-1985
The court was concerned with a long-term management contract for the Dorchester Hotel between Regent as managers and Pageguide. When Regent sold the hotel to Pageguide the management contract would continue and be novated (with some amendment) as . .

Cited by:
Cited – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .

Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Updated: 16 November 2021; Ref: scu.225446

Surroopchunder Sircar Chowdry v Ramrutton Mullick (500): PC 10 Feb 1837

Leave given to restore an appeal dismissed for want of prosecution, the Court below having consolidated it with another appeal in the same cause, which was still pending.

[1837] EngR 500, (1837) 1 Moo Ind App 358, (1837) 18 ER 146
Commonlii
England and Wales
Cited by:
See Also – Surroopchunder Sircar Chowdry v Ramrutton Mullick (499) PC 10-Feb-1837
Leave given to reinstate an appeal dismissed for want of prosecution, the Court below having consolidated it with another appeal in the same cause which was still pending. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 November 2021; Ref: scu.313617

Surroopchunder Sircar Chowdry v Ramrutton Mullick (499): PC 10 Feb 1837

Leave given to reinstate an appeal dismissed for want of prosecution, the Court below having consolidated it with another appeal in the same cause which was still pending.

[1837] EngR 499, (1837) 1 Moo PC 404, (1837) 12 ER 868
Commonlii
England and Wales
Citing:
See Also – Surroopchunder Sircar Chowdry v Ramrutton Mullick (500) PC 10-Feb-1837
Leave given to restore an appeal dismissed for want of prosecution, the Court below having consolidated it with another appeal in the same cause, which was still pending. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 November 2021; Ref: scu.313616

Anwar v The Advocate General and The Commission for Equality and Human Rights: SCS 2 Aug 2019

This reclaiming motion raises four questions. First, is there a power in either the Court of Session or, more important, the Sheriff Court to grant a warrant for inhibition and arrestment on the dependence of an application to an Employment Tribunal for damages resulting from discrimination and harassment? Secondly, if there is, is the procedure involved ‘excessively difficult’ such that it does not provide the applicant with an effective remedy as required by EU law? Thirdly, is the correct comparator for EU purposes those who make similar claims in the court system for damages arising out of the provision of services or those making other claims before an Employment Tribunal? Fourthly, is this abase in which the petitioner’s identity should be anonymised in the opinion issued by the court

[2019] ScotCS CSIH – 43, 2019 GWD 24-375, 2019 SLT 915
Bailii
Scotland

Employment, Litigation Practice

Updated: 15 November 2021; Ref: scu.641186

Williams v Central Bank of Nigeria: CA 2 Jul 2013

The claimant appealed against an order dis-allowing service on it out of the jurisdiction.
Held: Dr Williams’ appeal in respect of the Nigerian law claim was allowed but rejected in respect of the trust claim and the contract claim.

Lord Dyson MR, Aikens, Elias LJJ
[2013] EWCA Civ 785
Bailii
England and Wales
Citing:
See Also – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
See Also – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
See Also – Central Bank of Nigeria v Williams CA 3-Apr-2012
The claimant alleged that he had been defrauded and accused the appellant of involvement in the fraud. The Bank appealed against a finding that the claim against it was not time limited.
Held: The appeal failed. The action was by a beneficiary . .

Cited by:
See Also – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 November 2021; Ref: scu.512126

Lawless v Ireland (No 1): ECHR 7 Apr 1961

‘The Court,
Having regard to the conclusions presented by the Delegates of the European Commission of Human Rights at the hearing on 7th April 1961;
Taking note of the fact that the Agent of the Irish Government does not intend to submit conclusions on the matter in question;
Whereas in its judgment of 14th November 1960 the Court declared that there was no reason at this stage to authorise the Commission to transmit to it the written observations of the Applicant on the Commission’s Report;
Whereas in the said judgment, of which the French text only is authentic, the Court has recognised the Commission’s right to take into account (‘de faire etat’) the Applicant’s views on its own authority, as a proper way of enlightening the Court;
Whereas this latitude enjoyed by the Commission extends to any other views the Commission may have obtained from the Applicant in the course of the proceedings before the Court;
Whereas, on the other hand, the Commission is entirely free to decide by what means it wishes to establish contact with the Applicant and give him an opportunity to make known his views to the Commission; whereas in particular it is free to ask the Applicant to nominate a person to be available to the Commission’s delegates; whereas it does not follow that the person in question has any locus standi in judicio;
For these reasons,
Decides unanimously:
With regard to the conclusions under (a), that at the present stage the written observations of the Applicant, as reproduced in paragraphs 31 to 49 of the Commission’s statement of 16th December 1960, are not to be considered as part of the proceedings in the case;
With regard to (b) that the Commission has all latitude, in the course of debates and in so far as it believes they may be useful to enlighten the Court, to take into account the views of the Applicant concerning either the Report or any other specific point which may have arisen since the lodging of the Report;
With regard to (c), that it was for the Commission, when it considered it desirable to do so, to invite the Applicant to place some person at its disposal, subject to the reservations indicated above.’

[1961] ECHR 2, 332/57
Worldlii, Bailii
Human Rights
Citing:
See Also – Lawless v Ireland (No 1) ECHR 14-Nov-1960
ECHR Judgment (Preliminary objections) Preliminary objection rejected (incompatibility); Questions of procedure rejected. . .

Cited by:
See Also – Lawless v Ireland (No 3) ECHR 1-Jul-1961
The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice

Updated: 14 November 2021; Ref: scu.511025

Swinney and Another v Chief Constable of Northumbria: CA 22 Mar 1996

The plaintiff, a woman and her husband, had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into and the document was stolen, came into the possession of the person implicated. The plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff’s claim in negligence against the police was struck out, but re-instated.
Held: Police may exceptionally be liable in negligence in criminal investigations. There is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude.
Peter Gibson LJ said: ‘the Court must evaluate all the public policy considerations that may apply.’ and the position of a police informer required special consideration from the viewpoint of public policy.
Hirst LJ said:’As Laws J. pointed out in his judgment, there are here other considerations of public policy which also have weight, namely, the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates. In my judgment, public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in the Hill case [1989] A.C 53, which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.’
Ward LJ said: ‘it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police, without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected. The welfare of the community at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a duty of care, and that no consideration of public policy precludes the prosecution of the plaintiffs’ claim, which will be judged on its merits later.’

Lord Justice Hirst, Lord Justice Ward
Times 28-Mar-1996, [1997] QBD 464, [1996] EWCA Civ 1322, [1996] 3 WLR 968, [1996] 3 All ER 449, [1996] PNLR 473
Bailii
England and Wales
Citing:
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .

Cited by:
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Mullaney v Chief Constable of West Midlands Police CA 15-May-2001
The claimant police officer was severely injured making an arrest. He claimed damages from the respondent for contributory negligence of other officers in failing to come to his assistance.
Held: If a police officer owes a duty of care to . .
See Also – Swinney and another v Chief Constable of Northumbria Police (No 2) QBD 25-May-1999
A police informant was owed a duty of confidentiality by the police. His information brought him into a special relationship with the police, and they could be liable in damages for failing to take reasonable steps to protect that confidence. . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – B and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – An Informer v A Chief Constable CA 29-Feb-2012
The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his . .
Cited – AXN v The Queen CACD 27-May-2016
The defendant argued that greater note should have been taken on his sentencing to allow for the assistance he had given to the police after his arrest.
Held: The current accepted practice is that the text of the letter from the police to the . .

Lists of cited by and citing cases may be incomplete.

Police, Negligence, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.89660

Rex v Earl of Crewe, Ex parte Sekgome: CA 2 May 1910

By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate the powers of Her Majesty, and to do all such things ‘as are lawful,’ and to provide by proclamation for the administration of justice and generally for the peace, order, and good government of all persons within the Protectorate, including the prohibition and punishment of all acts tending to disturb the public peace.
One Sekgome, who claimed to be the chief of ‘a native tribe in the Protectorate’, was detained in custody at a place within the Protectorate by virtue of a proclamation authorizing his detention, and expressed to have been made by the High Commissioner, under the powers conferred on him by the Order in Council, on the ground that the detention of Sekgome was necessary for the preservation of peace within the Protectorate.
On an application by Sekgome for a writ of habeas corpus to the Secretary of State for the Colonies:
Held (affirming an order of the Divisional Court dismissing the application), that the Protectorate was a foreign country in which His
Majesty had jurisdiction within the meaning of the Foreign Jurisdiction
Act, 1890; that the proclamation was validly made under the powers conferred by the Order in Council; and that the detention of Sekgome was, therefore, lawful.
Held, also, by Vaughan Williams and Kennedy L.JJ., that the Protectorate was not a ‘foreign dominion of the Crown ‘ within s. 1 of
the Habeas Corpus Act, 1862.
Quaere, whether, in any event, the Secretary of State for the Colonies was a person having the custody of Sekgome to whom a writ of habeas corpus could be issued.
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion’ in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an act of state.
A writ of habeas corpus would run to such a territory, and ‘may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner’.

Vaughan Williams, Farwell LJJ
[1910] 2 KB 576, [1910] UKLawRpKQB 78
Commonlii
England and Wales
Citing:
Distinguished – Sprigg v Sigcau PC 26-Feb-1897
(Cape of Good Hope) . .

Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.470681

In re Norris, Application by Norris: HL 28 Jun 2001

The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was held that the civil court was looking to different issues. In the Crown Court the onus had been on the husband. She had no right of representation, and her interests were not the same as those of her husband. She was to be allowed to challenge the order made. As the registered proprietor, the burden of proof lay on customs and excise.
Lord Hobhouse of Woodborough referred to earlier cases: ‘These are illustrations of the principle of abuse of process. Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatam or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.’

Hope, Browne-Wilkinson, Clyde, Hutton, Hobhouse LL
Times 29-Jun-2001, Gazette 26-Jul-2001, [2001] 1 WLR 1388, [2001] UKHL 34, [2001] 3 FCR 97, [2001] 3 All ER 961
Bailii, House of Lords
Drug Trafficking Offences Act 1986
England and Wales
Citing:
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – United States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Appeal from – Clifford R Norris, Re; In the Matter of an Application By Teresa W Norris CA 27-Jan-2000
After a drugs trial, the commissioners sought a confiscation order against the defendant’s assets. The defendant’s wife argued that the house was in reality hers. The trial judge found against her. In later proceedings enforce the order, the wife . .
Cited – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
Cited – Mcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .
Cited – Abbas Kassimali Gokal v Serious Fraud Office CA 16-Mar-2001
The defendant was convicted of an offence to which section 15 of the Theft Act did not apply. It involved a deception of the auditors of BCCI in concealing a number of substantial loans made to a group of companies run by the defendant. Buxton J had . .

Cited by:
Cited – May, Regina v HL 14-May-2008
The defendant had been convicted of involvement in a substantial VAT fraud, and made subject to a confiscation order. He was made subject to a confiscation order in respect of the amounts lost to the fraud where he was involved, but argued that the . .
Cited – Gibson v Revenue and Customs Prosecution Office CA 12-Jun-2008
The claimant’s husband had been made subject to a criminal confiscation order in the sum of pounds 5.5 million. She now sought to appeal an action against life policies in which she claimed a 50% interest.
Held: Despite the finding that she . .
Cited – Lamb v Revenue and Customs Prosecutions Office CA 18-Mar-2010
The appellant challenged the appointment of a receiver in respect of property registered in his name, but said to be the realisable property of a man convicted of cheating the revenue. He said that he had funded the property, and that he had not . .
Cited – Larkfield Ltd and Others v Revenue and Customs Prosecution Office and Others CA 12-May-2010
The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Litigation Practice

Updated: 12 November 2021; Ref: scu.82076

Glebe Sugar Refining Co, Ltd, and Another v Trustees of Port and Harbour of Greenock and Others: HL 2 May 1921

Administration of Justice – Duty of Counsel and Agents – Duty to Bring to the Notice of the Court Authorities which Bear Either Way upon Matters under Debate.

Lord Chancellor, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1921] UKHL 435, 58 SLR 435
Bailii
Scotland

Legal Professions, Litigation Practice

Updated: 12 November 2021; Ref: scu.632634

Praetura Asset Finance Ltd v Hood: ComC 31 Jul 2019

Extemporary judgment on a claim by P against H seeking to recover over pounds 1.5 million said to be due to it from the defendant under an unregulated hire purchase agreement made between the parties. An acknowledgment of service was duly filed indicating an intention by the defendant to defend all of the claim. However, no defence was filed or served and the claimant entered judgment in default against the defendant for pounds 1,580,345.41, inclusive of interest. The defendant now sought to have judgment in default set aside.

Judge Hodge QC
[2019] EWHC 2231 (Comm)
Bailii
England and Wales

Contract, Litigation Practice

Updated: 12 November 2021; Ref: scu.642077

Chartwell Estate Agents Ltd v Fergies Properties Sa and Another: QBD 18 Feb 2014

Claimant’s applications, opposed, were for an extension of time for the exchange of witness statements; the claimant’s application for relief from sanctions for failing to serve witness statements in time, and the claimant’s application for permission to amend its cost budget.

Globe J
[2014] EWHC 438 (QB), [2014] 2 Costs LR 353
Bailii
England and Wales

Costs, Litigation Practice

Updated: 12 November 2021; Ref: scu.533763

Rattan v UBS Ag, London Branch: ComC 12 Mar 2014

rattan_ubsComC0314

The claimant had sought an order limiting the defendant’s costs after alleged non-compliance with directions, and failing to file a costs budget.
Held: The application was rejected. The Commercial Court will firmly discourage the taking of futile and time wasting procedural points: ‘the claimant’s argument has not only increased the expense of this CMC but has also, in all probability, damaged the relationship of co-operation and trust which ought to exist between the parties’ legal representatives and which is necessary for the efficient conduct of litigation. The taking of such a point is all the more unfortunate in a case where the parties’ initial costs budgets (for a combined total in excess of andpound;2 million) are already disproportionate to the amount in dispute (the US dollar equivalent of about andpound;1.3 million), so that the parties ought to have been concentrating on ways in which the case could be conducted at more proportionate cost.’

Males J
[2014] EWHC 665 (Comm)
Bailii
Civil Procedure Rules 3.9
Citing:
Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Cited – Summit Navigation Ltd and Another v Generali Romania Asigurare Reasigurare Sa Ardaf Sa and Another ComC 21-Feb-2014
The commercial court will not encourage time wasting procedural applications. Leggatt J summarised the principles that should be applied on an application for relief from sanctions: ‘i) On an application for relief from a sanction under CPR 3.9, it . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 November 2021; Ref: scu.522392