Baker v Quantum Clothing Group and Others: CA 5 Jun 2009

The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of the British Tinnitus Association (BTA). He had declared this and invited objections before the hearing. The defendant later unearthed other cross connections, these were put, the judge took advice of leading counsel, and did not recuse himself. Other connections later became apparent allegedly between the claimant’s solicitors and the BTA.
Held: The judge had acted correctly. The objections included false assertions as to the activities of the BTA and exaggerated the connection between the claimant’s solicitors and the BTA. As to the argument that a judge with trinities should not hear a case on hearing loss: ‘It amounts to a contention that no judge with any particular disability should hear a case involving that disability. A judge with poor eyesight or only one eye could not hear a case about an eye injury, a judge in a wheelchair could not hear a case about an injury which made the victim wheelchair bound and so on. And, taken to its logical conclusion, the argument would meant that a disabled judge could not hear a case about disability living allowance, or a woman judge hear a case about sexual discrimination against a woman. . . This objection . . . Has no substance.’
Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably practicable’ and said that, in referring to the ‘quantum of risk’, Asquith LJ must have been referring to the gravity of the harm which might occur as well as the likelihood of its occurrence.

Jacob LJ
[2009] EWCA Civ 566, Times 18-Jun-2009, [2009] CP Rep 38
Bailii
England and Wales
Citing:
Cited – Edwards v National Coal Board CA 1949
A regulation encompassed a requirement to take specified action, so far as it is reasonably practicable, in order to prevent danger. Asquith LJ discussed the term: ”Reasonably practicable’ . . seems to me to imply that a computation must be made by . .
See Also – Baker v Quantum Clothing Group Ltd and Another CA 11-Jun-2008
Application by claimant for order that the respondents would be responsible for their own costs of the appeal irrespective of its outcome. . .
See Also – Baker v Quantum Clothing Group CA 22-May-2009
The court considered the responsibility of employers for hearing losses resulting from exposure to noise at a level not at the time appreciated to cause a risk of injury. Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably . .
See Also – Baker v Quantum Clothing Group Ltd CA 28-Jun-2007
. .

Cited by:
Cited – Mann v Northern Electric Distribution Ltd CA 26-Feb-2010
Climb over high fence was unforeseeable
The claimant appealed against dismissal of his claim for damages after suffering very severe injury when climbing onto an electricity substation. He said that the defendant had not satisfied its statutory obligation to fence off the substation. The . .
See Also – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice, Personal Injury

Updated: 09 November 2021; Ref: scu.346798

Regina v Secretary of State for the Home Department ex parte Cheblak: CA 1991

Because of the importance placed on the swift and efficient determination of lawfulness of the restraint, habeas corpus applications are given priority in the organisation of the business of the court.
In order to be permitted to present a judicial review application the applicant must raise an arguable case on each of the grounds on which he seeks to challenge the impugned decision.
Lord Donaldson MR explained the difference between habeas corpus and judicial review: ‘Although, as I have said, the 2 forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different. A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.’
. . And: ‘the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature or the subject matter. National security is the exclusive responsibility of the executive.’

Lord Donaldson MR
[1991] 1 WLR 890
England and Wales
Cited by:
Cited – TF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.279144

Anisminic Ltd v Foreign Compensation Commission: HL 17 Dec 1968

There are no degrees of nullity

The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a nullity. The Commission replied that the courts were precluded from considering the question by section 4(4) of the 1950 Act which provided: ‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’ The respondent said these were plain words with one meaning: ‘Here is a determination which is apparently valid: there is nothing on the face of the document to case any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute.’
Held: This was rejected. All forms of public law challenge to a decision have the same effect, to render it a nullity. The decision of the Commission was wrong in law, and therefore a nullity, rather than a ‘determination’ within the protection of the ouster clause. The House made obsolete the historic distinction between errors of law on the face of the record and other errors of law.
Lord Reid considered that the term ‘jurisdiction’ had both a wide and a narrow sense: ‘I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.’ He mentioned a variety of errors, including addressing the wrong question. ‘But, if [the tribunal] decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.’
A statutory provision, which provided that any ‘determination by the commission’ in question ‘shall not be called in question in any court of law’, did not prevent the court from deciding whether a purported decision of the commission was a nullity, on the ground that the commission had misconstrued a provision defining their jurisdiction.
‘In the present case the commission could be controlled if being ‘satisfied’ of the matters referred to ‘them’ they failed to obey the mandatory direction of the Order in Council. But in deciding whether or not they were satisfied of the matters they were working within the confines of their denoted delegated and remitted jurisdiction. In the exercise of it very many questions of construction were inevitably bound to arise. At no time was the commission more centrally within their jurisdiction than when they were grappling with those problems. If anyone could assert that in reaching honest conclusions in regard to the questions of construction they made any error, such error would, in my view, be an error while acting within their jurisdiction and while acting in the discharge of their function within it.’

Lord Reid, Lord Pearce, Lord Wilberforce
[1969] 2 AC 147, [1968] UKHL 6, [1969] 1 All ER 208, [1969] 2 WLR 163
Bailii
Foreign Compensation Act 1950 4(4), The Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1959
England and Wales
Citing:
Unsatisfactory – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Davies v Price CA 1958
Parker LJ said that even if the Agricultural Land Tribunal had misconstrued a statute that did not mean that they had exceeded their jurisdiction: ‘they clearly had jurisdiction to decide whether to give or withhold consent, and if they misconstrued . .
Cited – Rex v Nat Bell Liquors Ltd PC 7-Apr-1922
(Alberta) Lord Sumner said: ‘Long before Jervis’s Acts statutes had been passed which created an inferior court, and declared its decisions to be ‘final’ and ‘without appeal’, and again and again the Court of the King’s Bench had held that the . .
Cited – Rex v Northumberland Compensation Appeal Tribunal, ex Parte Shaw CA 19-Dec-1951
A tribunal had wrongly calculated his ‘service’ when assessing the applicant’s compensation for loss of office as clerk to the Hospital Board. There was no right of appeal against its decisions. The Attorney General had argued that certiorari would . .
Cited – Davies v Price CA 1958
Parker LJ said that even if the Agricultural Land Tribunal had misconstrued a statute that did not mean that they had exceeded their jurisdiction: ‘they clearly had jurisdiction to decide whether to give or withhold consent, and if they misconstrued . .
Cited – The Queen v The Board Of Works For The District of St Olave’s, Southwark 18-Nov-1857
Certiorari availablity for Error of Law
A party said he had been an officer of certain Commissioners, whose functions by statute came to an end, and was entitled to compensation. He applied for it to the district board. They rejected his claim. He appealed to the Metropolitan Board of . .
Cited – Sir Henry Edward Bunbury, Bart v Philip Fuller 25-Jun-1853
A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, . .
Cited – Ex parte Bradlaugh QBD 1878
A section in an Act of Parliament read: ‘and if . . the magistrate or justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant and that such or any of them have been kept for any of the purposes . .
Cited – Regina v Commissioners for the Special Purposes of the Income Tax CA 27-Jun-1888
Lord Esher MR pointed out that while it is generally correct to say that a tribunal cannot give itself jurisdiction by a wrong decision on the facts there may be cases in which the legislature endows a tribunal with jurisdiction, provided that a . .
Cited – Rex v Shoreditch Assessment Committee, Ex parte Morgan CA 6-Jul-1910
(At KBD and CA) A ratepayer claimed that the value of his hereditament had been reduced in value. Pursuant to section 47 of the Valuation (Metropolis) Act, 1869, he addressed a written requisition to the overseers. The section provided that: ‘If in . .
Cited – Rex v Cheshire Justices, Ex parte Heaver Bros Ltd 1912
The compensation authority, after the renewal of a licence of a public-house had been refused, had to decide how compensation was to be divided amongst the persons interested in the licensed premises. The lessees of the premises had been held (by . .
Cited – The Board of Trustees of The Maradana Mosque v The Honourable Badi-Ud-Din Mahmud and Another PC 19-Jan-1966
(Ceylon) the rules of natural justice had been violated.
Where statutory authority was given to a Minister to act if he was satisfied that a school is being administered in a certain way he was not given authority to act because he was . .
Cited – Campbell v Brown HL 1829
Although by the statute 43 Geo. III, c. 54, s. 21, the judgment of the Presbytery is declared to be final without appeal or review by the court, civil or ecclesiastical, yet if the proceedings upon which judgment was pronounced were contrary to law . .
Cited – Regina v His Honour Judge Sir Donald Hurst, ex parte Smith QBD 1960
The County Court Judge had directed the removal from the electoral register the names of a number of persons who were not party to the proceedings before him. Motions were brought in the Divisional Court for an order of certiorari to quash his . .
Cited – Mersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
Cited – Estate and Trust Agencies (1927) Limited v The Singapore Improvement Trust PC 31-May-1937
(Singapore) Where a tribunal exercising an exclusive jurisdiction is said to have made an error as to that jurisdiction, applying `a wrong and inadmissible test’, the decision whether the decision was made in error, is one for a court. . .
Cited – Seereelall Jhuggroo v The Central Arbitration and Control Board and Another PC 6-Oct-1952
(Mauritius) . .
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .

Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – Farley v Child Support Agency and Another; Farley v Secretary of State for Work and Pensions (No. 2) HL 28-Jun-2006
Magistrates were wrong to think they had a discretion to look at the validity of a liability assessment under child support legislation. The Act gave the payer alternative avenues of appeal, and therefore the Act should be read as it stated and the . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Pearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Cited – Cart v The Upper Tribunal SC 21-Jun-2011
Limitations to Judicial Reviw of Upper Tribunal
Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper . .
Cited – EBA, Re Judicial Review SCS 31-Mar-2010
The petitioner claimed disability living allowance. Her claim was refused, and eventually also at the Upper Tribunal, of whose decision she now sought judicial review.
Held: The Upper Tribunal being designated as a court of superior record. . .
Cited – EBA v The Advocate General for Scotland SCS 10-Sep-2010
(Inner House) The petitioner wished to appeal against refusal of disability living allowance. Her appeal to the first tier tribunal was rejected, and her request to the Upper Tribunal for leave to appeal was refused. When, she then sought leave to . .
Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Cited – Regina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Administrative

Leading Case

Updated: 09 November 2021; Ref: scu.187058

In re Racal Communications Ltd; In Re a Company: HL 3 Jul 1980

Court of Appeal’s powers limited to those Given

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review: ‘There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.’
Lord Diplock said: ‘The break-through made by Anisminic . . was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.’ But there was: ‘no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic . . ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.’

Lord Diplock, Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Scarman
[1981] AC 374, [1980] UKHL 5, [1980] 2 All ER 634, [1980] 3 WLR 181
Bailii
Supreme Court Act 1981 15, Companies Act 1948 441
England and Wales
Citing:
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Majority Overruled – Pearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
Cited – Deighton v Cockle CA 2-Dec-1911
Where, an order haying been obtained for judgment under Order xiv., judgment is not signed until more than twelve months afterwards, the case does not come within Order lxiv., r. 13, and therefore it is not necessary that the notice of intention to . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Cited by:
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Applied – Westminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Regina v Manchester Crown Court ex parte Williams and Simpson 1990
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review. . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.182917

Venulum Property Investments Ltd v Space Architecture Ltd and Others: TCC 22 May 2013

The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially changed, and the court is now to consider: ‘all the circumstances of the case, so as to enable it to deal justly with the application, including the need- (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.’ and ‘when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The Claimant has taken quite long enough to bring these proceedings and enough is now enough. I therefore refuse this application. ‘

Edwards-Stuart J
[2013] EWHC 1242 (TCC)
Bailii
Civil Procedure Rules 3.9
England and Wales
Citing:
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
See Also – Stolzenberg and others v CIBC Mellon Trust Co Ltd and others CA 30-Jun-2004
The court considered the issue of the use of a strike out as a sanction for non-compliance with a court order.
Held: The approach of the court in a case considering relief for sanctions – exemplified by RC Residuals v Linton Fuel was bound to . .
Cited – CIBC Mellon Trust Company and Others v Stolzenberg and Others ChD 3-Feb-2003
Application to set aside judgments entered on failure to comply with ‘unless’ orders.
Held: Etherton J said: ‘The Court of Appeal has laid down guidance as to the approach of the Court when considering an application for relief from sanctions . .
Cited – Hashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
Cited – Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd and Another CA 1-Feb-2012
Lewison LJ cited with approval paragraph 6.5 of the Jackson report, which said: ‘courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and . .
Cited – Totty v Snowden; Hewitt v Wirral and West Cheshire Community NHS Trust CA 31-Jul-2001
Where a party had served a claim form, but then failed to serve the particulars of claim within the appropriate time limit, the court had full discretion to allow an extension of time for service. It had been argued that the same rules applied both . .
Cited – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Hoddinott and others v Persimmon Homes (Wessex) Ltd CA 21-Nov-2007
The claimant had issued proceedings and the defendant filed an acknowledgement, and then argued that the court had no jurisdiction. The claimant appealed against an order declining jurisdiction.
Held: Where a party filed an acknowledgement, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 09 November 2021; Ref: scu.510044

Three Rivers District Council and others v Governor and Company of the Bank of England (No 6): HL 11 Nov 2004

The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in preparing to present the Bank’s case, and the Bank now appealed an order granting such access, arguing legal professional privilege.
Held: The appeal succeeded, and the order for disclosure was revoked.
Lord Scott of Foscote said: ‘the modern case law on legal professional privilege has divided the privilege into two categories, legal advice privilege and litigation privilege. Litigation privilege covers all documents brought into being for the purposes of litigation. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given.’
. . and ‘If a solicitor becomes the client’s ‘man of business’, and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context. There is, in my opinion, no way of avoiding difficulty in deciding in marginal cases whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply.’ and ‘So I must now come to policy. Why is it that the law has afforded this special privilege to communications between lawyers and their clients that it has denied to all other confidential communications? In relation to all other confidential communications, whether between doctor and patient, accountant and client, husband and wife, parent and child, priest and penitent, the common law recognises the confidentiality of the communication, will protect the confidentiality up to a point, but declines to allow the communication the absolute protection allowed to communications between lawyer and client giving or seeking legal advice. In relation to all these other confidential communications the law requires the public interest in the preservation of confidences and the private interest of the parties in maintaining the confidentiality of their communications to be balanced against the administration of justice reasons for requiring disclosure of the confidential material. There is a strong public interest that in criminal cases the innocent should be acquitted and the guilty convicted, that in civil cases the claimant should succeed if he is entitled to do so and should fail if he is not, that every trial should be a fair trial and that to provide the best chance of these desiderata being achieved all relevant material should be available to be taken into account. These are the administration of justice reasons to be placed in the balance. They will usually prevail.’
Lord Carswell said that case law established that: ‘communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.’ and ‘ The work of advising a client on the most suitable approach to adopt, assembling material for presentation of his case and taking statements which set out the relevant material in an orderly fashion and omit the irrelevant is to my mind the classic exercise of one of the lawyer’s skills.’

Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2004] UKHL 48, Times 12-Nov-2004, [2004] 3 WLR 1274, [2005] 1 AC 610
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Minet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
Cited – Regina v A Special Commissioner ex parte Morgan Grenfell and Co Ltd; Regina v Martyn Rounding (HM Inspector of Taxes) ex parte Morgan Grenfell and Co Ltd CA 2-Mar-2001
The inspector of taxes had power to issue a notice requiring access to legally privileged material. The power given by the section included certain exceptions, and those were not to be extended. The special or general commissioners had no power to . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Kingston’s (Duchess) Case 1776
The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties coming incidentaly in question in another court for a different purpose. The principle of . .
Cited – Lobo Machado v Portugal ECHR 20-Feb-1996
One of the characteristics of a fair trial under article 6 is that the proceedings should be ‘adversarial’. The applicant’s right, in an adversarial hearing, to see and reply to material before the court: ‘means in principle the opportunity for the . .
Cited – Bolton v Liverpool Corporation HL 1833
The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – Carpmael v Powis 1846
The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Herring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .
Cited – Holmes v Baddeley HL 1844
Discussing professional legal privilege, Lord Lyndhurst said: ‘The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they . .
Cited – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
Cited – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
Cited – Duke of Argyll v Duchess of Argyll HL 1962
The pursuer sought to protect the contents of her diary from publication using the law of confidence.
Held: Lord Reid said: ‘the effect, and indeed the purpose, of the law of confidentiality is to prevent the court from ascertaining the truth . .
Cited – Seabrook v British Transport Commission 1959
The practice which has developed to determine the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to . .
Cited – Hagart and Burn-Murdoch v Inland Revenue Commissioners HL 1929
The mere lending of money, outside the existence or contemplation of professional help, is outside the ordinary scope of a solicitor’s business . .
Cited – Pearse v Pearse 2-Jan-1846
Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Bullivant v Attorney-General for Victoria PC 1900
Fraud or dishonesty must be distinctly alleged and as distinctly proved. It must be sufficiently particularised; and it is not sufficiently particularised if the facts pleaded are consistent with innocence.
‘for the perfect administration of . .
Cited – Parry-Jones v The Law Society CA 1969
The Society had, for regulatory purposes, exercised a power under the 1957 Act to call upon the plaintiff, a solicitor, to produce for inspection accounts and other information relating to the conduct of his clients’ affairs. He sought an injunction . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Minter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited by:
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.219353

Barder v Caluori: HL 2 Jan 1987

In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully killed the two children and then committed suicide. The husband sought leave to appeal out of time, and to have the consent order set aside.
Held: The House considered the principles to be applied when looking at applications for leave to appeal out of time.
Lord Brandon: ‘My Lords, the question whether leave to appeal out of time should be given on the ground that assumptions or estimates made at the time of the hearing of a cause or matter have been invalidated or falsified by subsequent events is a difficult one. The reason why the question is difficult is that it involves conflict between two important legal principles and a decision which of them is to prevail over the other. The first principle is that it is in the public interest that there should be finality in litigation. The second principle is that justice requires cases to be decided, so far as practicable, on the true facts relating to them, and not on assumptions or estimates with regards to those facts which are conclusively shown by later events to have been erroneous.
In appeals from the High Court to the Court of Appeal, and from the Court of Appeal to your Lordships’ House, there is a discretion to admit evidence relating to supervening events where refusal to admit it would plainly cause serious injustice. This has been established by three cases in the field of actions for damages for death or personal injuries: Curwen -v- James [1963] 1 WLR 748; Murphy -v- Stone-Wallwork (Charlton Ltd [1969] 1 WLR 1023 and Mulholland -v- Mitchell [1971] AC 666.’
Lord Brandon considered the circumstances in which an unexpected supervening event might lead to an ancillary relief order being set aside: ‘There can, in my opinion, be no doubt that the consent order dated 20 February 1985 was agreed between the husband and the wife through their respective solicitors, and approved by the registrar, upon a fundamental, though tacit, assumption. The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made.’ and ‘My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.’

Lord Brandon
[1988] AC 20, [1987] 2 All ER 440, [1987] 2 WLR 1350, [1988] Fam Law 18
England and Wales
Citing:
Appeal from – Barder v Barder (Caluori Intervening) CA 1987
. .

Cited by:
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Swindale v Forder CA 31-Jan-2007
In ancillary relief proceedings, the matrimonial home had been transferred to the wife subject to a charge in favour of the husband’s partner not to be enforced until a certain date. That partner now sought the early sale of the property sayng that . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Roult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.246715

Coleshill v Manchester Corporation: 1928

During the trial, the judge, Mr Justice Fraser had died and the case had been continued by Mr Justice Acton ‘at the urgent request of the parties’ with earlier witnesses not being recalled but the new judge having recourse to the transcripts.
Held: Scrutton LJ said: ‘I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner.’

Scrutton LJ
[1928] 1 KB 776
England and Wales
Cited by:
Distinguished – The Forest Lake 1968
The presiding judge sitting with two elder brethren of Trinity House, was compelled to retire due to ill health in the middle of the case. The president Sir Jocelyn Simon ordered, in the circumstances, that the action be heard de novo and Mr Justice . .
Distinguished – Hitch, Regina (on the Application of) v Commissioners for the Special Purposes of the Income Tax Acts Admn 4-Mar-2005
Before the appeal had been concluded under section 45(3), one of the two commissioners was incapacitated. The taxpayer appealed the refusal of a de novo hearing and the replacement of the tax commissioner.
Held: The reconstitution of the panel . .
Distinguished – In re British Reinforced Concrete Engineering Co Ltd 1929
Practice on incapacity of the judge during a trial. . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 09 November 2021; Ref: scu.223884

Regina v Schildkamp: HL 1971

The defendant was accused of defrauding the company’s creditors.
Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in legislation. Punctuation could be used as aids in cases of ambiguity as could the long title of the Act, headings and side note. Titles and cross-headings need to be treated with caution because they are not normally directly considered by Parliament and whilst they ought to indicate the scope of the sections which follow, there is always the possibility that the scope of one of these sections may have been widened, for example by amendment.
Lord Upjohn said: ‘The argument of counsel for the appellant was straightforward. Reading subsection (3) he submits truly that its terms are perfectly clear and simple. There is no ambiguity; the subsection clearly applies so as to create an offence on the part of a person knowingly carrying on a business – with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, and the circumstance that the company may subsequently have been wound up is quite irrelevant. The subsection plainly applies as a matter of language to the case where there has been no subsequent winding up. Looking at that subsection alone, I agree. Naturally he relies upon the contrast between subsection (1) where there is a reference to winding up and subsection (3) where there is not; a point to which I shall return later.
‘But, my Lords, this, in my opinion, is the wrong approach to the construction of an Act of Parliament. The task of the court is to ascertain the intention of Parliament; you cannot look at a section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act. The principle was stated by Lord Simonds in Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 461:
‘For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those other legitimate means, discern the statute was intended to remedy.’
‘So I look to the Companies Act, 1948, as a whole and the very first thing that I notice from the Long Title is that it is a consolidation Act. Therefore, bearing in mind that a consolidation Act is presumed not to alter the law, it becomes material to trace this subsection to its original source.’
Otherwise: Director of Public Prosecutions v Schildkamp
‘A side-note is a poor guide to the scope of a section, for it can do no more than indicate the main subject with which the section deals.’ though: ‘…I can conceive of cases where very rarely it might throw some light on the intentions of Parliament just as a punctuation mark.’

Upjohn L, Lord Reid
[1971] AC 1
Companies Act 1948
England and Wales
Citing:
Approved – Attorney-General v Prince Earnest Augustus of Hanover HL 1957
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more . .

Cited by:
Mentioned – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Green, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .

Lists of cited by and citing cases may be incomplete.

Crime, Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.186852

Cape Brandy Syndicate v Inland Revenue Commissioners: CA 1921

Rowlatt J said: ‘In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied’ and ‘subsequent legislation, if it proceeded on an erroneous construction of previous legislation, cannot alter the previous legislation’.
Lord Sterndale MR said: ‘I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.’
Lord Atkinson: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute.’
Otherwise: Cape Brandy Syndicate v CIR

Rowlatt J, Lord Sterndale MR, Lord Atkinson
[1921] 1 KB 64, 12 Tax Cas 358
England and Wales
Cited by:
Cited – Green and Another v Inland Revenue ChD 11-Jan-2005
The deceased died intestate and with a negative valued personal estate, but with assets in trusts, including a revocable life interest in property. The question was whether his debts could be set off against the trusts interests to reduce them below . .
Approved – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Peter John St. Barbe Green, David Robert Mitson (Trustees of the Will of Consuelo Dowager Duchess of Manchester v the Commissioners of Inland Revenue ChD 11-Jan-2005
The taxpayer appealed a notice of determination of liability of the estate for Inheritance Tax purposes. He sought to set off an excess of liabilities over assets in the deceased’s own estate against assets held in settlements.
Held: The . .
Cited – Frankland v Commissioners of Inland Revenue CA 7-Nov-1997
Shares which were transferred within the first tax quarter after a death lost the benefit of Inheritance Tax exemption on their transfer into a discretionary trust. . .
Cited – Trustees of BT Pension Schemes and others v Clark (HM Inspector of Taxes) CA 24-Feb-2000
Whether pension fund trustees were engaging in the sub-under-writing of share issues in return for commission payments, was a question of fact for the original court hearing the case, and it was not for an appeal court to set aside that finding of . .
Cited – Commissioners of Inland Revenue v McGuckian HL 21-May-1997
Steps which had been inserted into a commercial transaction, but which had no purpose other than the saving of tax are to be disregarded when assessing the tax effect of the scheme. The modern approach to statutory construction is to have regard to . .
Cited – Ormond Investment Co Ltd v Betts HL 1928
The House considered the interpretation of a statute dealing with public rights of navigation.
Held: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the . .

Lists of cited by and citing cases may be incomplete.

Income Tax, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.221017

WG, Regina (on The Application of) v Leicester City Council: Admn 21 Jan 2011

The claimant sought a judicial review, but refused to reveal her true identity to the court.

Cranston J
[2011] EWHC 189 (Admin)
Bailii
England and Wales

Litigation Practice

Updated: 09 November 2021; Ref: scu.429675

Dinglis Properties Ltd and Another v Dinglis Management Litd and Others: ChD 14 Apr 2016

Application to discharge a freezing order on the grounds (i) that there was no solid evidence of a risk that the defendants will dissipate their assets and (ii) that it was obtained in breach of the Claimants’ duty of full and fair disclosure.
Held: The application succeeded. Where the pleadings did not require an inference of dishonesty in the defendant, it could neither be inferred that he would dissipate his assets,

Halpern QC
[2016] EWHC 818 (Ch), [2016] WLR(D) 194, [2016] 4 WLR 72
Bailii, WLRD
England and Wales

Litigation Practice

Updated: 02 November 2021; Ref: scu.562460

Shah and Another v HSBC Private Bank (UK) Ltd: CA 4 Feb 2010

Money laundering suspicion to be explained

The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused to explain why it had made the report.
Held: The appeal succeeded. The relevant suspicion need not be based on reasonable grounds. However the court could see no reason why the bank should not be put to its proof of having a relevant suspicion, and summary judgement was not appropriate. It is for the bank to prove that it suspected their customer to be involved in money-laundering.

Ward, Longmore, Lloyd LJJ
[2010] EWCA Civ 31, Times 01-Apr-2010, [2010] 3 All ER 477, [2010] Bus LR 1514, [2011] 1 All ER (Comm) 67, [2010] Lloyd’s Rep FC 276
Bailii
Proceeds of Crime Act 2002 335
England and Wales
Citing:
Cited – UMBS Online Ltd, Regina (on the Application Of) v Serious Organised Crime Agency and Another CA 2-May-2007
The bank had reported to the respondent its suspicions about funds it held for the claimant. The accounts were frozen, and the customer now sought a judicial review of the refusal of the Agency to reconsider its decision.
Held: The review was . .
Cited – K Ltd v National Westminster Bank Plc and others CA 19-Jul-2006
The bank had declined to act upon a customer’s instructions, reporting its suspicions of criminal activity to the police. Permission was given to proceed but only after a delay. The claimant customer sought its costs.
Held: The customer’s . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Appeal from – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .

Cited by:
Main Judgment – Shah and Another v HSBC Private Bank (UK) Ltd (Costs) CA 4-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Banking, Crime, Litigation Practice

Updated: 02 November 2021; Ref: scu.396603

Hussain v Hussain and Another: CA 23 Oct 2012

The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed saying that the judges conclusions had not been justified on the evidence.
Held: The appeal succeeded. The claim was essentially on the facts: ‘I would for myself, however, be a little wary of saying that, for an appellate court to interfere with a judge’s assessment of the evidence, it must be satisfied that the trial judge was ‘plainly’ or ‘clearly’ wrong – because the Rules do not so provide. Moreover the issue on an appeal such as this does not concern the exercise of a discretion but concerns the judicial evaluation of evidence.’
The judge had insufficient evidence to support his finding. There is no ‘rule’ that a court should follow the money, and the court was wrong to conclude that the accident only made sense as a fraud by the defendant driver if the claimant was also involved.

Lord Neuberger MR, Davis, Treacy LJJ
[2012] EWCA Civ 1367
Bailii
England and Wales
Citing:
Cited – Powell v Streatham Manor Nursing Home HL 1935
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Litigation Practice

Updated: 02 November 2021; Ref: scu.465112

Tiverton Estates Ltd v Wearwell Ltd: CA 1975

“Subject to Contract” not to be diluted

‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in negotiation until a formal contract is executed’ It was vital that the meaning and effect of the phrase must not be diluted. As to the required memorandum, it must contain a recognition of the existence of the prior contract and must state its terms.
Lord Denning MR said: ‘These courts are masters of their own procedure and can do what is right even though it is not contained in the rules.’
Stamp LJ said that a memorandum must, to satisfy the section, recognise the contract.

Lord Denning MR, Stamp LJ, Scarman LJ
[1975] Ch 146
Law of Property Act 1925 40
England and Wales
Citing:
Approved – Clearbrook Property Holdings Limited v Verrier ChD 1974
The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff’s claim for . .
Incorrect – Law v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .

Cited by:
Cited – Carlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
Cited – Irani v Irani and others ChD 24-Jul-2006
The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the . .
Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.183017

Taylor v Lawrence: CA 4 Feb 2002

A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm of solicitors representing the opposing party, and they later appealed his judgment. The appeal was rejected, but then the party discovered that, contrary to what the judge had said, to the effect that he had not instructed the firm for some time, he had had his will drawn up by the firm in the days before the hearing, and was not to be billed.
Held: It was possible for the court to re-open a case where there was a manifest injustice, and there was no available remedy. If the remedy would be to take the case to the House of Lords, but leave would be refused, the court could also re-open the case. This jurisdiction must be used only with great caution. It is a principle of common law that a final judgment should be just that. Nevertheless, the allegation of bias in the judge was not made out. The test in cases of apparent bias was if, in all the circumstances, a fair-minded and informed observer would see a real possibility that the tribunal was biased. The normal contacts between members of the legal profession should not lead to that suspicion. The informed observer of today can be expected to be aware of the legal traditions and culture of this jurisdiction.
There is a distinction between the question whether a court has jurisdiction and how it exercises the jurisdiction given by statute. A court does not need to be given express power to decide upon the procedure which it wishes to adopt. Such a power is implicit in it being required to determine appeals. Lord Woolf explained the difference between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised: ‘It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.’

Lord Woolf CJ, Lord Phillips, And, Lord Justice Ward, Lord Justice Brooke, Lord Justice Chadwick
Times 04-Feb-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 90, [2002] 2 All ER 353, [2002] 3 WLR 640, [2003] QB 528
Bailii
England and Wales
Citing:
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 . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Flower v Lloyd CA 1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .
See Also – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .

Cited by:
Cited – Seray-Wurie v Hackney London Borough Council CA 25-Jun-2002
The claimant had applied for and been granted its costs certificate by default. The respondent claimed it had sent its point of issue notice in time. The council now applied under the rule for the court itself to re-open the decision to allow the . .
Cited – Regina v Moore CACD 12-May-2003
The applicant had been convicted of contempt of court, but succeeded on appeal. Costs had been ordered in his favour, but the matter had been referred back to the court to consider the extent of its powers on such an occasion.
Held: The making . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Roberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
Applied – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – AWG Group Ltd and Another v Morrison and Another ChD 1-Dec-2005
Application was made for the judge to recuse himself from a forthcoming trial when he indicated that an intended witness was known to him personally.
Held: The test to be applied was to include: ‘all circumstances which have a bearing on the . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
Cited – In re S (a child) and W (a child); KSJ v WRW CA 5-Nov-2008
The mother sought leave to appeal against orders made for the financial support of her children. The parties had been involved in very protracted and bitter litigation.
Held: The appeals had no reasonable prospect of success and were . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited – Sherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
Cited – Patel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
Cited – Guy v Barclays Bank Plc CA 8-Dec-2010
In an earlier action the claimant said that he had been defraused of land by a forged transfer. The transfereee had charged the land to the respondent bank who in that action gained a decision that its charge was effective, the transfer being . .
Mentioned – Gold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Ameyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.167558

Anderson v City of Bessemer City, North Carolina: 19 Mar 1985

United States Supreme Court – The court explained some considerations for the deference to be given by an appellate court to findings of fact made by a lower court: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ . . rather than a ‘tryout on the road.’ . . For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.’

470 US 564 (1985), 53 USLW 4314, [1985] USSC 57, 105 SCt 1504, 84 L Ed 2d 518
USSC
United States
Cited by:
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.540458

Gibbon v Manchester City Council, L G Blower Specialist Bricklayer Ltd, Reeves and another: CA 25 Jun 2010

A payment in had been made, and a counter offer made by the claimant. The original offer was increased but rejected. The counter-offer was not withdrawn, and was then accepted by the defendant. On receipt of the acceptance, the claimant purported to withdraw the counter offer. The judge had held that since the offer had not been formally withdrawn it remained open to acceptance. The withdrawal was too late.
Held: The appeals failed. The procedure under Part 36 is a self contained sytem, and answers must be sought within it, and not under the general law of contract. Elements will be common to both, but the Rules prevail. The rules in contract applying to rejection of an offer should not be applied.
As to the decision in Carver Carnwath LJ said that it should not be interpreted as opening the way to a wide ranging investigation of emotional and other factors in every case, even where the financial advantage is significant.

Sir Anthony May P, Carnwath, Moore Bick LJJ
[2010] EWCA Civ 726, [2010] WLR (D) 161, [2010] CP Rep 40, [2010] 36 EG 120, [2010] PIQR P16, [2010] 1 WLR 2081, [2010] 5 Costs LR 828
Bailii, WLRD
Civil Procedure Rules Part 36
England and Wales
Citing:
Cited – Sampla and Others v Rushmoor Borough Council and Another TCC 22-Oct-2008
The rejection of a Part 36 offer does not render it incapable of later acceptance. . .
Cited – Carver v BAA Plc CA 22-Apr-2008
The claimant had succeeded in her claim and had recovered more than the sum paid in by the defendant, and now appealed an order for costs in favour of the defendant.
Held: The award of costs to a successful claimant achieving more than any sum . .
Cited – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another (No 7) TCC 29-Sep-2008
Last stage of the Wembley stadium construction dispute. Jackson J, interpreting Carver said that it set out: ‘how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 02 November 2021; Ref: scu.418432

Craig v Kanssen: CA 1943

There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it aside without the need for an appeal. A person who is affected by an order of the Court which can properly be described as a nullity, is entitled ex debito justitiae to have it set aside. There is an inherent jurisdiction to set aside a determination made where there has been a failure to observe the principle that a person against whom a charge or claim is made must be given a reasonable opportunity of appearing and presenting his or her case.

Lord Greene MR
[1943] 1 KB 256, [1943] 1 All ER 108
England and Wales
Cited by:
Cited – Regina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .
Criticised – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Obiter remarks criticised – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.227950

Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4): CA 7 Aug 2002

The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon the Bingham report, and they sought disclosure of documents provided to the Enquiry. They appealed findings that the actual respondents to the application did not have possession of the documents sought. The Treasury cross-appealed an order not requiring the claimant to specify the documents sought, saying that the threshold condition under the rules had not been met.
Held: It was not necessary to show that it was more likely than not that the documents would be of assistance. The tests were to be applied to the class of documents, and not each document in turn. Appeals dismissed. ”likely’ [within the rules] does not carry any necessary connotation of ‘more probable than not’. It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature – or the rule-making body, as the case may be – intended a modest threshold of probability.’

The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene
Times 04-Oct-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1182, [2003] 1 WLR 210, [2002] 4 All ER 881, [2003] CP Rep 9, [2003] CPLR 181
Bailii
Civil Procedure Rules 31.17(3)(a)
England and Wales
Citing:
Cited – American Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited, Novartis Pharma AG CA 27-Jul-2000
The invention was a second medical use for a known drug rapamycin, which was found to have an immuno-suppressive effect. The court asked whether a claim to rapamycin should be construed to include derivatives.
Held: A person skilled in the art . .

Cited by:
Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Cited – Flood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
Cited – Clifford v NGN Ltd and Mulcaire ChD 3-Feb-2010
There are three steps in every case where a party seeks disclosure from a third party: ‘(1) First it has to be shown that the documentation is likely to support the case of the applicant or adversely affect the case of the respondent. The word . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.174769

Ezekiel v Orakpo: CA 16 Sep 1996

A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for possession was made so as to enforce the order. The debtor tendered a sum sufficient to pay the principal debt but not interest on it. The parties appealed a finding that the creditor was entitled to interest, but only for six years.
Held: The creditor was entitled to interest not limited to six years. A charging order carries a charge to secure interest, whether or not interest is specifically mentioned. Enforcement of a foreign currency judgment by means of a charging order required the judgment debt first to be converted to Sterling before completion of the enforcement by the making of the charging order. Enforcement of a judgment debt by means of a charging order under the Charging Orders Act 1979 is completed when the charging order is made final.
Millett LJ said that, for a judgement to carry judgment interest it is not necessary to say so specifically. Therefore it is also not necessary to mention interest in any Charging Order carrying the judgement into effect for such interest to be added to the security. He continued:-
‘Section 3(4) of the Charging Orders Act 1979 provides that the Charging Order takes effect as an equitable charge created by the judgment debtor by writing under his hand. It must therefore be given the same effect unless the Act itself provides otherwise as would an equitable charge on the land in question to secure a stated principle sum but with no mention of interest. Such a charge would carry interest even though there were no words allowing interest on the charge itself. That was decided at first instance in re Drax… which was followed . . in Stoker v Elwell . . The defendant invited us to over rule Stoker . . and re Drax although they have stood unchallenged for nearly a century.
His submission was founded on the well established principle that a Charging Order cannot be given except for an ascertained sum . . It is clear Law for example that a Charging Order cannot be made for untaxed costs. In the present case, of course, the costs were taxed. But it is said by parity of reasoning that it cannot be made to secure future interest since the amount of such interest cannot be ascertained in advance. However, the Charging Orders Act 1979 itself entitles the Court to make a Charging Order for monies due or to become due, and it appears to me that future interest at an ascertained rate (albeit a variable rate) from the date of judgment to the date of payment is an ascertained or at least an ascertainable sum for the purpose of the rule in question.
So far as the costs of enforcing the security are concerned, it is of course perfectly true that at the date of the Charging Order, or indeed subsequently, it was quite impossible to ascertain them. The Judge came to the conclusion that the Charging Order must, by the provisions of the statute, be given the same effect as if it were an equitable charge under hand only. If it were, the chargee would have the right in equity to add the costs of enforcing the security to the security. He considered that that should be implied into the Charging Order by virtue of section 3(4). I agree with him and do not think it necessary to add anything further on the matter.’

Millett LJ
Times 16-Sep-1996, [1997] 1 WLR 340
Judgments Act 1938 17
England and Wales
Citing:
Appeal from – Ezekiel v Orakpo ChD 4-Nov-1994
The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not . .
See Also – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:
Cited – Carnegie v Glessen and Others CA 1-Mar-2005
A dispute had been settled by imposition of a charging order against property expressed in a foreign currency. The claimant now said such an order was not possible, and had been made by mistake correctable under the slip rule.
Held: The Master . .
Applied – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land, Limitation

Leading Case

Updated: 02 November 2021; Ref: scu.80429

Kazakhstan Kagazy Plc and Others v Zhunus and Others: ComC 6 May 2016

The claimants sought damages alleging that certain transactions had been dishonestly procured by the defendants. The first defendant had made a settlement, and the second and third defendants now sought a contribution from him. Applications were now made.
Held: The applications were dismissed.

Leggatt J
[2016] EWHC 1048 (Comm)
WLRD, Bailii, Judiciary

Torts – Other, Litigation Practice

Updated: 02 November 2021; Ref: scu.563253

Salomon v Customs and Excise Commissioners: CA 1966

Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by inquiry of the appropriate department of Her Majesty’s Government. Where, by a treaty, Her Majesty’s Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated, which it may do in anticipation of the coming into effect of the treaty, as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v. Murray; White Star Line and U.S. Mail Steamers Oceanic Steam Navigation Co. Ltd. v. Comerford [1931] A.C. 126; sub nom. The Croxteth Hall; The Celtic, 47 T.L.R. 147, H.L.(E.) , and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.’ However, the sovereign power of the Queen in Parliament extends to breaking treaties.
Lord Denning MR said: ‘In 1950 there was a convention between many of the European countries . . I think we are entitled to look at it, because it is an instrument which is binding in international law: and we ought always to interpret our statutes so as to be in conformity with international law. Our statute does not in terms incorporate the convention, nor refer to it. But that does not matter . .’

Diplock LJ, Lord Denning MR
[1967] 2 QB 116, [1966] 2 All ER 340, [1966] 2 Lloyds Rep 460, [1966] 3 WLR 36
Convention on the Valuation of Goods for Customs Purposes of December 15, 1950
England and Wales
Cited by:
Cited – Regina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.248851

Douglas v HM Attorney General and Others: Admn 15 Dec 2015

The claimant sought discharge of a declaration that she was a vexatious litigant. The order had been made in 2006.
Held: The claimant had persisted with attempts to litigate speculative matters. The claim was rejected: ‘The Applicant’s recent attempts at litigation, right up to last year, demonstrate that her propensity for vexatious litigation remains. I am thus not satisfied that there is a sufficiently clear material change of circumstance, let alone a whole new set of circumstances, to justify discharge or variation of the Order. The Applicant’s recent behaviour is at odds with any proper understanding of the nature of her conduct. She is someone who has given assurances of good intention to mend her ways before, which assurances she has nevertheless gone on to break. Even this application had elements of vexatiousness – namely, her claims for a declaration that the Court should tell Lincoln’s Inn and Manchester Metropolitan University that she has human rights – and her application for permission to apply for summary judgment for damages against those two institutions. Thus, it is both necessary and proper to maintain the Order.’

Elias LJ, Carr DBE J
[2015] EWHC 4109 (Admin)
Bailii
Supreme Court Act 1981 42
England and Wales

Litigation Practice

Updated: 02 November 2021; Ref: scu.562472

Re L and B (Children): SC 20 Feb 2013

The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in care proceedings had issued a provisional judgment, but after representations had delivered a judgment which differed substantially. The parties complained that there had been no satisfactory explanation for the shift.
Held: The power of a judge to reverse the decision at any time before the order was drawn up and sealed was not limited to exceptional circumstances. The overriding objective in the exercise of power was to deal with the case in question justly. The Court of Appeal had erred in requiring exceptionality for when a judge may issue a corrective judgment after changing his mind.
In this case however the first judgment had not reached such a stage of finality for the question properly to arise, since the judgment had not been sealed; the child had not moved, and a placement plan had not been implemented. The judgment as finalised had not been challenged by appeal, and therefore the Court declined to answer the question as posed.
Lady Hale said: ‘the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact . . If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.’
and ‘children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.’

Lord Neuberger, President, Lady Hale, Lord Kerr, Lord Wilson, Lord Sumption
[2013] UKSC 8, [2013] 1 WLR 634, UKSC 2012/0263, [2013] WLR(D) 69, [2013] 2 All ER 294, [2013] 2 FCR 19, [2013] 2 FLR 859, [2013] Fam Law 664
Bailii, WLRD, Bailii Summary, SC Summary, SC
Children Act 1989 1(2)
England and Wales
Citing:
Cited – In re A and L (Children) (Judgment: Adequacy of Reasoning) (Practice Note) CA 27-Oct-2011
The mother appealed against a factual findings made in the course of care proceedings as to her involvement in sexual abuse of the children.
Held: The court gave guidance as to the reconsideration of a court’s decision. Munby LJ said: ‘it is . .
Appeal from – In re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – In re St Nazaire Company CA 1879
Sir Richard Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal.
Held: He had no power to do so. Any such power had . .
Cited – In re Suffield and Watts, Ex parte Brown CA 1888
A High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860.
Held: A judge has jurisdiction to reverse his decision at any time until . .
Cited – Millensted v Grosvenor House (Park Lane) Ltd CA 1937
For the negligence of the hotel in upsetting a jug of hot water over her, the judge awarded damages of pounds 50 to the plaintiff, but on the following day, without further argument on that point, he informed the parties that his award had been . .
Cited – In re Harrison’s Share Under a Settlement CA 1955
The judge had recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no . .
Cited – Murphy v Stone-Wallwork (Charlton) Ltd HL 1969
It had been assumed at the trial and in the Court of Appeal that the defendants would continue to employ the plaintiff and the assessment of future loss had been based upon that assumption. Shortly after the decision of the case by the Court of . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Pittalis v Sherefettin CA 1986
On the day after the judge had given judgment in a county court, he decided that he had been wrong. The judge provided the party with grounds upon which he would, if not persuaded otherwise, alter his previous judgment and order. A further hearing . .
Cited – In re Blenheim Leisure (Restaurants) Ltd (No 3) 9-Nov-1999
Neuberger J gave examples of cases where a judge might revisit his decision: a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa QBD 3-May-2001
The court had handed to the parties a draft judgement, but one party then asked the judge to reconsider it.
Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own . .
Cited – Paulin v Paulin CA 17-Mar-2009
The court considered an application by the wife when, anticipating ancillary relief claims, the husband sought to have himself declared bankrupt, and she intervened to have the bankruptcy set aside. The husband now appealed.
Held: Wilson LJ . .

Cited by:
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .
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 . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.471049

Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased: ChD 12 Apr 2011

The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, but acquaintances. An earlier claim had been struck out, and the costs order then made remained unpaid. The defendants said this was a repeat of the claim and an abuse of process.
Held: Apart from the non-payment of the costs awarded, the court could not identify any clear way in which the claim was an abuse. The first claim had been struck out not on any assessment of the merits, but for a technical failure. The matter could proceed on payment of the oustanding costs within 14 days.

Briggs J
[2011] EWHC 908 (Ch)
Bailii
England and Wales
Citing:
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 – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited – Investment Invoice Financing Ltd v Limehouse Board Mills Ltd CA 18-Jan-2006
It was proper for a court to prevent a second action on a matter where an order for payment for the costs of a first action between the parties had not been discharged by the claimant. In such a case the potential for abuse lies in the unfairness of . .
Cited – Re Flynn Deceased ChD 1982
An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack . .
Cited – Grovit and Another v Doctor and Others CA 28-Oct-1993
A delay in the prosecution of a libel case can be interpreted as an abuse of process. A claimant must pursue his case with vigour, and the court should be ready to resist the use of actions to gag defendants. The court asked whether the appellant’s . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 02 November 2021; Ref: scu.432734

Fiddes v Channel Four Television Corporation and Others: CA 29 Jun 2010

The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s appeal failed. The right to a trial by jury is a constitutional right subject to the conditions in section 69. Nevertheless there were advantages to trial by judge including the availability of a reasoned judgment and the reduction in cost. Taking account of the extent of documentation involved and other relevant factors, the conclusion that the matter fell within the conditions was inescapable.
Lord Neuberger MR spoke of the principles appliccable on hearing an application for jury trial iin a defamation case: There are, however, four factors which have been identified in the earlier cases, which have some general application and which are presently relevant, as the judge recognised:
(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v Pressdram (supra) at page 68 per Lawton LJ with whom Slade LJ expressly agreed). This conclusion is based on section 69(3), which was a new section appearing for the first time in the 1981 Act to replace section 6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v Times Newspapers was decided.
(2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest . .
(3) The fact that the case involves issues of credibility, and that a party’s honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury . .
(4) The advantage of a reasoned judgment is a factor properly to be taken into account . .’

Lord Neuberger of Abbotsbury MR, Maurice Kay VP, Sedley LJJ
[2010] EWCA Civ 730, [2010] WLR (D) 163, [2010] 1 WLR 2245
Bailii, WLRD
Senior Courts Act 1981 69(1)
England and Wales
Citing:
Cited – Viscount de L’Isle v Times Newspapers Ltd CA 1988
May LJ said that the three questions which a Judge has to decide under section 69 so as to conclude whether a defamation trial should by by jury or judge alone, ‘requires a value judgment, based on what he is told by counsel, and his experience at . .
Cited – Goldsmith v Pressdram Ltd CA 1988
The court considered whether to order a defamation trial to be before a judge alone, or with a jury.
Held: The word ‘examination’ has a wide connotation, is not limited to the documents which contain the actual evidence in the case and . .
See Also – Fiddes v Channel 4 TV Corporation and Another CA 24-Mar-2010
. .
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Beta Construction Ltd v Channel Four Television Co Ltd CA 1990
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also . .

Cited by:
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Cited – McGrath v Independent Print Ltd QBD 26-Jul-2013
The claimant alleged defamation in an article on the defendant’s web-site discussing a failure of his earlier defamation action. He now sought directions for a jury trial. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 02 November 2021; Ref: scu.418430

Secretary of State for Environment, Food, and Rural Affairs v Meier and Others: SC 1 Dec 2009

The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part.
Held: The defendants’ appeal was allowed. The court may grant an injunction to prevent further occupations, but an order to give up possession of land not adversely occupied was incorrect: ‘the decision whether or not to grant an order restraining a person from trespassing will turn very much on the precise facts of the case. Nonetheless, where a trespass to the claimant’s property is threatened, and particularly where a trespass is being committed, and has been committed in the past, by the defendant, an injunction to restrain the threatened trespass would, in the absence of good reasons to the contrary, appear to be appropriate.’ and
‘A court may consider it unlikely that it would make an order for sequestration or imprisonment, if an injunction it was being invited to grant were to be breached, but it may nonetheless properly decide to grant the injunction. Thus, the court may take the view that the defendants are more likely not to trespass on the claimant’s land if an injunction is granted, because of their respect for a court order, or because of their fear of the repercussions of breaching such an order. Or the court may think that an order of imprisonment for breach, while unlikely, would nonetheless be a real possibility, or it may think that a suspended order of imprisonment, in the event of breach, may well be a deterrent (although a suspended order should not be made if the court does not anticipate activating the order if the terms of suspension are breached).’

Lord Rodger, Lord Walker, Lady Hale, Lord Neuberger, Lord Collins
[2009] UKSC 11, UKSC 2009/0087, [2009] 1 WLR 2780, [2009] 49 EG 70, [2010] NPC 3, [2009] WLR (D) 347
Bailii, Times, SC, SC Summ, WLRD
England and Wales
Citing:
Cited – Manchester Corporation v Connolly CA 1970
The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is . .
Cited – In Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .
Cited – South Cambridgeshire District Council v Persons Unknown CA 17-Sep-2004
The council appealed refusal of an order against persons unknown with regard to preventing breaches of planning control at a specific site.
Held: An injunction could properly be granted against persons unknown ‘causing or permitting hardcore . .
Cited – Drury v Secretary of State for Environment, Food and Rural Affairs CA 26-Feb-2004
Trespassers occupied part of the land owned by the claimant. They now appealed agaainst an injunction preventing them unlawfully occupying any part of the claimant’s land including areas not previously occupied.
Held: It was critical to . .
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Cited – Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites ChD 2003
The court granted an interlocutory injunction to restrain unknown trespassers from entering land.
The Vice-Chancellor gave the following guidance : (1) First, that the description of the defendant should not involve a legal conclusion, such as . .
Cited – Regina v Wandsworth County Court ex parte Wandsworth London Borough Council 1975
Where the court grants a writ of possession requiring the bailiff to put the claimant into possession of land, in principle, the bailiff will remove all those who are on the relevant land, irrespective of whether or not they were parties to the . .
Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .
Cited – Hemmings v The Stoke Poges Golf Club Limited CA 1920
The defendant landlord had entered the demised property, in which the plaintiff and his wife were living, and removed them and their furniture, using no more force than was reasonably necessary to do so. The landlord had an immediate right to . .
Appeal from – Secretary of State for the Environment Food and Rural Affairs v Meier and others CA 31-Jul-2008
The claimant sought possession of land occupied by the defendant nomadic people. Part of the land only had been occupied by the defendants.
Held: An order for possession could be granted not only of the land occupied, but also the remainder of . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Cited – Henderson v Squire 1869
The court considered the case where a tenant sublet the premises and the subtenant unlawfully retained possession following the termination of both tenancies.
Held: The tenant, although himself out of possession, had not given – or restored – . .
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown CA 4-Mar-1999
The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant . .
Cited – Gledhill v Hunter CA 5-Mar-1880
An action ‘to establish title to land,’ not claiming possession, is not an action ‘for the recovery of land,’ so as to require the leave of the Court, under Rules of Court, 1875, Order xvii., rule 2, for its joinder with another cause of action. . .
Cited – McPhail v Persons, Names Unknown CA 1973
The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court . .
Cited – Ministry of Agriculture, Fisheries and Food v Heyman and others 1989
The respondent travellers were in wrongful occupation of an area of woodland owned by the appellant. The appellant sought an order for possession not only to that land but also for an area of woodland in its ownership two or three miles away. The . .
Cited – Thompson v Elmbridge Borough Council CA 1987
The wife was the secure tenant of the premises, against whom the local authority landlord obtained a possession order on grounds of arrears of rent, not to be enforced on payment of a weekly sum off the arrears in addition to what the order . .

Cited by:
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 02 November 2021; Ref: scu.381643

Practice Statement (Judicial Precedent): HL 1966

The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those of the committee which determined the decision unanimously or by a majority. That would be a licence not appropriate to final decision-making by a supreme court. ‘Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.’

[1966] 3 All ER 77, [1966] 1 WLR 1234
England and Wales
Citing:
Overruled – London Street Tramways v London County Council HL 25-Apr-1898
House Decisions binding on Itself
The House laid down principles for the doctrine of precedent. When faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was . .

Cited by:
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Fitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
Cited – Department of Transport v Chris Smaller (Transport) Ltd HL 1989
An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Applied – Regina v Shivpuri HL 15-May-1986
The defendant had been accused of attempting to import controlled drugs, but the substances actually found were not in fact a controlled drug, though he had believed and intended them to be. He appealed saying that he should not be conviced of an . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde HL 1978
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the . .
Cited – Vestey v Inland Revenue Commissioners HL 1979
Taxes are imposed upon subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined. A proposition that whether a subject is to be taxed or . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Youngsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
Applied – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.182382

Singh v The Secretary of State for The Home Department: CA 27 May 2016

The claimant said that the Judge in the first Tier Tribunal had made remarks before the hearing which suggested bias against the claimant.
Held: The appeal failed. There was in this case no adequate evidence of the tribunal having shown bias.
The court set out the following observations on granting permission to appeal on such grounds in the absence of rules on the topic for the Tribunal: ‘(1) An allegation of bias or misconduct can only too easily be raised by a disgruntled litigant. It is therefore important that any application for permission to appeal, if based (in whole or part) on such a ground, is closely scrutinised when consideration is given as to whether permission to appeal should be granted. Such an allegation, if to be sufficient to merit the grant of permission at all, should ordinarily be expected to be properly particularised and appropriately evidenced.
(2) If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned: both in fairness to the judge and to provide the Upper Tribunal with a fuller picture.
(3) Such written comments of the judge, where obtained, should be provided to the parties for the purposes of the appeal hearing in the Upper Tribunal. In addition, such written comments should be retained on the file pending any possible further appeal to the Court of Appeal (the present case indicates the potential awkwardness arising from that failure).
(4) Proceedings in the First-tier Tribunal are not ordinarily recorded (it is not a court of record) and no transcript of the hearing will be available. There may be some cases where it may also be necessary to obtain the Tribunal Judge’s own note or record of the entire hearing.
(5) It will normally be likely in such as the present cases to be of assistance to the Upper Tribunal to know what the advocate for the respondent has to say as to what happened or what was said before the First-tier Tribunal. In the present case neither the Upper Tribunal nor this court had the assistance of any such observations. It should be borne in mind that to provide such observations is the more likely to help produce a fuller and more accurate picture of what actually happened or was said in the First-tier Tribunal. There may be cases where the advocate concerned has no precise note or recollection. In that case, the Upper Tribunal at least can be so told.
(6) Whether oral evidence is needed at the hearing of the appeal on the issue of what happened or was said below should be carefully considered by the parties.
(7) Reflecting all the foregoing, it is likely to be important, in appeals of this nature, for the file to be reviewed and any directions given by an Upper Tribunal Judge in good time before the substantive appeal hearing.’

[2016] EWCA Civ 492, [2016] WLR(D) 294
Bailii, WLRD
England and Wales
Citing:
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice

Updated: 02 November 2021; Ref: scu.565356

Whalley v PF Developments and Another: CA 14 Feb 2013

The claimants appealed against the level of damages awarded to them in respect of a trespass by the respondent developer. The judge had rejected the claim for unpleaded special damages. The claimants said that the sums had been covered in the evidence at the court’s request.
Held: The appeal succeeded. Though the claimants might have sought leave to amend their pleadings, there had been no prejudice to the defendant, and indeed the defendants had responded to the evidence without objection. The damages should be recalculated to assess the sums claimed.
Lewison LJ said: ‘The purpose of a statement of case is to define the issues and to warn each party what will be dealt with at the trial, but the flexibility of modern procedure is such that, provided the mechanics are fair, adequate notice of matters to be dealt with at trial can be given under the direction of the court otherwise than through the formal medium of a statement of case. Under CPR Part 12.7, when the court enters judgment for an amount to be assessed by the court it will give directions. The same point is made in the practice direction accompanying Part 26. In the present case the district judge directed sequential service of witness statements. He could have directed service of a pleaded schedule of loss, but he did not. It is plain in my judgment that the witness statement was to stand as a statement of loss.’

Mummery, Rimer, Lewison LJJ
[2013] EWCA Civ 306
Bailii
England and Wales
Citing:
Cited – Perestrello E Companhia Limitada v United Paint Co Ltd CA 1969
The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages.
Held: Where a plaintiff claims that he has suffered damage, . .

Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.472891

Dawkins v Lord Rokeby: 1873

dawkins_rokeby1873

Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause.
Kelly CB said that: ‘The authorities are clear, uniform and conclusive, that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceedingbefore any court or tribunal recognized by law.’
Witnesses before tribunals recognised by law should ‘give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice’.’

Kelly CB
(1873) LR 8 QB 255
Citing:
Appeal from – Dawkins v Lord Rokeby 1866
. .

Cited by:
Approved – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Trapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
Appeal from – Dawkins v Lord Rokeby HL 1875
The court unanimously confirmed the judgment of the lower court and expressly adopted the reasoning given. Witnesses before tribunals recognised by law should be able to ‘give their testimony free from any fear of being harassed by an action on an . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Silcott v Commissioner of Police of the Metropolis CA 24-May-1996
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – Cabassi v Vila 12-Dec-1940
High Court of Australia – The claim sought to sidestep the rule giving immuity to witnesses before a court by alleging a conspiracy to give false evidence.
Held: Starke J said: ‘But it does not matter whether the action is framed as an action . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Police, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.184729

CS v ACS and Another: FD 16 Apr 2015

Rule Against Appeal was Ultra Vires

W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only remedy was in an appeal.
Held: The appeal succeeded. The rule allowing only an appeal was ultra vires and was to be treated as a nullity insfar as it purported to remove the right of a litigant in certain circumstances to apply to the court without first obtaining permission.

Sir James Munby P FD
[2015] EWHC 1005 (Fam), [2015] WLR(D) 171, [2015] 1 WLR 4592, [2015] Fam Law 647
Bailii, WLRD
Family Proceedings Rules 30, Practice Direction 30A 14.1, Matrimonial and Family Proceedings Act 1984 31F(6)(a)
England and Wales
Citing:
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
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 – Harris v Manahan CA 1997
Application to vary ancillary relief order made by consent. Promptitude is required. Ward LJ considered substantial restraint on a judge hearing appeals against his own decisions. . .
Cited – L v L FD 2-May-2006
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. . .
Cited – L v L FD 15-Aug-2011
Appeal by the Appellant husband from a financial remedy order made following the breakdown of his marriage to the wife. . .
Cited – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
Cited – Hunt v Luck CA 1902
Dr Hunt owned properties for which the rents were collected by his agent. The land were conveyed to a Mr Gilbert, who then mortgaged them. After the doctor’s death, his personal representatives challenged the validity of the conveyance. When the . .
Cited – Commissioners of Customs and Excise v Anchor Foods Ltd (No 3) ChD 8-Jul-1999
The Civil Procedure Rules have not changed the common law rules which say that an interlocutory order for costs could not be varied by another judge sitting at first instance, except only in exceptional circumstances where it appeared for example . .
Cited – S v S 2002
Bracewell J considered the first of the conditions suggested by Lord Brandon in Barder for allowing an appeal against an order made by consent – that the circumstances giving rise to the appeal should be such as to undermine the order. He said that . .
Cited – Peakviewing (Interactive) Ltd and others v Secretary of State for Culture, Media and Sport CA 28-Nov-2002
The Secretary of State had refused to grant a certifate as to a file under the 1985 Act thus disallowing certain capital allowances. The Rules said that a decision of the High Court would be final. . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen ChD 15-Jul-2003
The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
Cited – Roult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.545892

Comet Products UK Ltd v Hawkex Plastics: CA 1971

The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis it was held that it should not have been allowed. A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent.
Where a respondent to an application for committal for contempt had chosen to deploy affidavit evidence before the court, the court had a discretion to allow cross-examination on the contents of those affidavits. However, the court must first be satisfied that the cross-examination will be confined to the allegations of contempt, rather than to wider matters relevant to the merits of the proceedings.
Lord Denning MR said: ‘This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action.
I cannot accept counsel’s submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:-
‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture . . ‘no one is bound to incriminate himself”
This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:-
‘this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance’;
and he went on to say at page 288:-
‘by long and immemorial usage,[it] has now become the law of the land’.
I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him.’
Megaw LJ observed that where there is a bona fide application to cross-examine a deponent on his affidavit in interlocutory proceedings, the application should normally be granted.

Lord Denning MR, Megaw LJ
[1971] 2 QB 67, [1971] 1 All ER 1141
England and Wales
Cited by:
Cited – The Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
Cited – Inplayer Ltd and Another v Thorogood CA 25-Nov-2014
Appeal against a decision that the first defendant in a chancery action was guilty of two contempts of court by reason of untruthful statements in his affidavit. He complained of procedural irregularities affecting the fairness.
Held: ‘the . .
Cited – VIS Trading Co Ltd v Nazarov and Others QBD 18-Nov-2015
Application for the first defendant to be committed for alleged contempt of court for having failed to make disclosure of documents as required by a court order.
Whipple J said: ‘In this case, the extent to which the Defendants are in . .
Cited – Discovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Leading Case

Updated: 02 November 2021; Ref: scu.179891

Hytec Information Systems Limited v Council of City of Coventry: CA 4 Dec 1996

The Court directed that unless particulars were served by a specified date the defendant’s claim should be struck out. The defendant served some particulars but it was decided that the defendant had deliberately flouted the unless order and its pleadings would be struck out.
Held: The striking out was upheld.
A failure to follow and obey an ‘unless order’ is to be viewed in the context of the overall justice of the case, and ‘this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: first, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent (as Mr MacGregor eloquently put it) were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other. The basis of the rule is that orders of the court must be observed and the court is entitled to expect that its officers and counsel who appear before it are more observant of that duty even than the litigant himself.’ and ‘Had counsel appeared before the learned judge with sufficient humility, making respectful submissions that it was considered that the order had been complied with, throwing himself or herself on the mercy of the court, and offering to comply with its order if that view was wrong, then I imagine that the quality of mercy would not have been utterly dead in the judge’s bosom. In this case that was not the course followed by these defendants. It is too late for them to come to this court with blandishments of that kind.’
Ward LJ set out the approach to unless orders as follows –
1. An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order;
2. Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed;
3. This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure;
4. It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy;
5. A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order;
6. The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice;
7. The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.

Ward LJ, Auld LJ, Lord Woolf MR
Times 31-Dec-1996, [1996] EWCA Civ 1099, [1997] 1 WLR 1666
Bailii
England and Wales
Cited by:
Cited – Dowles Manor Properties Limited v Bank of Namibia and Kalweendo CA 9-Mar-1998
The plaintiff sought leave to appeal against an order striking out its claim, having failed to comply with unless orders as to the filing of details of its case. The company’s officers were not resident in England. Their solicitors had withdrawn . .
Cited – Worldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
Cited – Oliver v Cox (T/a Focus Service Station) CA 24-Jul-1997
The claimant sought leave to appeal against the refusal of an award of special damages. The claim had mounted spectacularly, but he had failed to provide evidence as directed to support the claim.
Held: Even at the time of the application, the . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.140966

Re MRJ JT and KT (Reconsideration of Order): CoP 10 Apr 2014

re_mjtCoP0414

The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The orders made were confirmed. The court recognised that the interference in a person’s choice of attorney was an interference in their right to private and family life under article 8 of the Convention, and must only be allowed where fully warranted. The evidence now before the court established even more clearly the mismanagement of the patient’s affairs by the agent.

Lush LJ
[2014] EWHC B15 (COP)
Bailii
Mental Capacity Act 2005, Court of Protection Rules 2007, European Convention on Human Rights 8
Citing:
Cited – Re S and S CoP 2008
Hazel Marshall QC J described the system of reconsideration under the 2007 Rules: ‘ Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, . .
Cited – Re Harcourt CoP 2013
Unless warranted under Article 8.2, the revocation by the Court of Protection an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8.1 right to . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Litigation Practice, Agency

Updated: 02 November 2021; Ref: scu.523650

Gladman Commercial Properties v Fisher Hargreaves Proctor and Others: CA 14 Nov 2013

The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated to settle also this matter.
Held: The appeal was dismissed. The judge’s conclusion was plainly correct.

Longmore, Ryder, Briggs LJJ
[2013] EWCA Civ 1466
Bailii
Civil Liability (Contribution) Act 1978
England and Wales
Citing:
Cited – Bryanston Finance Limited v de Vries 1975
If A claimed to be the victim of a tort committed by joint tortfeasors, and if A obtained either a judgment against one or more of them, or the benefit of a settlement by which he released one or more of them, then subject to certain exceptions, A . .
Cited – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited – Stuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd and Another CA 12-May-2011
The court heard a proposed arrangement for the remedying of a deficit in the pension scheme. . .
Cited – Ansari v Knowles and Others QBD 8-Nov-2012
Eady J considered the principles in construing a compromise agreement: ‘The modern approach is to apply ordinary principles of construction to such agreements in seeking to determine the intention of the parties and, in particular, that of the . .
Cited – President of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Cited – Rogers v Booth CA 1937
The plaintiff, a Salvation Army Officer claimed under the Workmen’s Compensation Act.
Held: The claim failed. Sir Wilfred Green MR said that membership of the Salvation Army gave rise to a relationship ‘pre-eminently of a spiritual character’ . .
At ChD – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others ChD 18-Jan-2013
. .
Appeal from – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others ChD 13-Feb-2013
Unresolved issues. . .

Cited by:
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 November 2021; Ref: scu.517756

Servaas Incorporated v Rafidain Bank and Others: ComC 14 Dec 2010

The claimant had supplied a factory to Iraq, but remained unpaid. Assets had been frozen in the respondent Iraqi bank, and with the new government, the liquidators were to pay assets to a fund who were, in turn to discharge debts pro rata. The appellant sought a third party debt order, but the respondent relied on section 13(4), saying that the buying in of the debts was a sovereign, and not a commercial, act, and it had certified it as such.
Held: The request was refused.
Arnold J said: ‘In my judgment SerVaas has no real prospect of successfully rebutting the presumption created by the Certificate for the reasons given by counsel for Iraq. In my view SerVaas’s argument wrongly conflates the transactions by which Iraq acquired the debts that are the subject of the Admitted Claims with the intended use of those assets. Iraq is not presently using those assets, but intends to pay the dividends on them to the DFI. That property is not being used to provide finance to Iraq, and it is immaterial that that property was acquired by means of bonds in the cases where the consideration took the form of bonds. Nor is the property being used or intended to be used for transactions ‘otherwise than in the exercise of sovereign authority’. Iraq has decided to transfer the distributions to the DFI in the exercise of its sovereign authority, albeit constrained in this respect by Resolution 1483, for the purposes set out in the resolution. I therefore conclude that Iraq’s Admitted Claims are entitled to immunity from execution by virtue of section 13(2)(b) of the 1978 Act.’

Arnold J
[2010] EWHC 3287 (Ch)
State Immunity Act 1978 13(4)
England and Wales
Citing:
See Also – Servaas Inc v Rafidain Bank and Others ChD 14-Dec-2010
Application for third party debt order. . .

Cited by:
At Commercial Court – Servaas Incorporated v Rafidain Bank and Others CA 3-Nov-2011
A commercial debt due to the claimant from the former Iraqi government, and for which judgment had been obtained in France, had been bought from receivers by the new Iraqi Development fund. The appellants sought to secure their judgment in full by a . .
At Commercial Court – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International, Commercial

Updated: 02 November 2021; Ref: scu.427223

Aldi Stores Ltd v WSP Group Plc and others: CA 28 Nov 2007

Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. In reaching the decision, the court had taken into account matters which were irrelevant. The fact that a claim might have been raised in earlier proceedings was not conclusive to establish abuse of process. Whether a second claim is abusive calls for an exercise of judgment. It is not an exercise of discretion. Rather, it is a question to which, ultimately, there is only a correct answer. The court must look at all the circumstances. Nor was the fact that a decision made by a party in complex proceedings which might result in the use of greater judicial time necessarily an abuse. It was for the state to provide the necessary resources and there are other constraints on parties who might proceed in this way and which were short of denying them justice. If was for the defendant to prove the claim to be an abuse, and it had not discharged that burden. The issue of abuse engages both the public interest, which is concerned with the finality of litigation and the efficient management of litigation, and the private interest of the claimant seeking access to the court.
Thomas LJ said: ‘I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring an action in a different way) can make the action impermissible. If an action can be properly brought, it is the duty of the state to provide the necessary resources; the litigant cannot be denied the right to bring a claim (for which he in any event pays under the system which operates in England and Wales) on the basis that he could have acted differently and so made more efficient use of the court’s resources. . The problems which have arisen in this case should have been dealt with through case management.’

Longmore LJ, Thomas LJ, Wall LJ
[2007] EWCA Civ 1260, Times 04-Dec-2007, [2008] BLR 1, [2008] CILL 2549, [2008] 115 Con LR 49, [2008] CP Rep 10, [2008] PNLR 14, [2008] 1 WLR 748, (2008) 24 Const LJ 334
Bailii
England and Wales
Citing:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Appeal from – Aldi Stores Ltd v WSP Group Plc and others TCC 15-Jan-2007
. .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited by:
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Construction, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.261596

Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement): QBD 16 Feb 2018

Equitable Interpleader

Equitable Interpleader – Enforcement – controlled goods – interpleader – equity – common law – Civil Procedure – Rules of Supreme Court – title to goods – third party – Writ – High Court Enforcement Officers

Victoria McCloud M
[2018] EWHC 219 (QB)
Bailii
Civil Procedure Rules 85.4 85.5, Tribunals, Courts and Enforcement Act 2007
England and Wales
Citing:
Cited – Reading v The London School Board 1886
Wills J said: ‘All the common law statutes as to interpleader are now repealed and the right to that class of relief is regulated by Order LVII, by which the old practice of the Court of Chancery is modified’. . .
Cited – Ex parte Mersey Docks and Harbour Board 1899
AL Smith LJ said: ‘The matter [ie, of interpleader] now depends upon the provisions of Order LVII, r.1’ . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 02 November 2021; Ref: scu.605165

Barton v Wright Hassall Llp: CA 23 Mar 2016

Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service.

Black, Floyd, LJJ, Moylan J
[2016] EWCA Civ 177
Bailii
England and Wales
Citing:
Leave – Barton v Wright Hassall Solicitors Llp CA 16-Jun-2015
Application for leave to appeal . .

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 November 2021; Ref: scu.561203

A J Bekhor and Co Ltd v Bilton: CA 6 Feb 1981

The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the documents concerned did not relate ‘to matters in question in the action’ and the power to order interrogatories did not relate ‘to any matter in question between the applicant and that other party in the cause or matter’. Ackner LJ however said: ‘where the power exists to grant the remedy, there must also be inherent in that power the power to make ancillary orders to make that remedy effective.’ The power in section 45(1) includes the power to grant an interlocutory injunction to restrain a party to any proceedings from removing from the jurisdiction or otherwise dealing with assets located within the jurisdiction where that party is, as well as where he is not, domiciled, resident or present within that jurisdiction . . there must be inherent in that power, the power to make all such ancillary orders as appears to the court to be just and convenient, to ensure that the exercise of the Mareva jurisdiction is effective to achieve its purpose.

Ackner LJ, Stephenson LJ, Griffiths LJ
[1981] 1 QB 923, [1981] EWCA Civ 8, [1981] 1 Lloyd’s Rep 491, [1981] 2 All ER 565, [1981] 2 WLR 601, [1981] Com LR 50
Bailii
Supreme Court of Judicature (Consolidation) Act 1925 45
England and Wales
Citing:
Cited – Nippon Yusen Kaisha v Karageorgis CA 1975
The plaintiff company had chartered a ship to the defendants. A large sum was now claimed for hire, and a string prima facie case made out. The charterers could not be found but there was evidence of funds at a bank in London. An ex parte . .
Cited – Mareva Compania Naviera SA v International Bulkcarriers SA CA 1-Feb-1975
An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets.
Held: The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: ‘A mandamus or an injunction may . .
Cited – Anton Piller v Manufacturing Processes Ltd CA 8-Dec-1975
Civil Search Orders possible
The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search . .
Cited – Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH CA 2-Jan-1978
The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order . .
Cited – Rasu Maritima SA v Perusahaan (the Pertamina) CA 1978
Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction. . .
Cited – London and County Securities Ltd v Caplin ChD 26-May-1978
The court made a Mareva order with ancillary disclosure orders for the purpose of enabling the plaintiffs to trace property acquired by the defendant and so take steps to seize that property if it derived from their assets. . .
Cited – Iraqi Ministry of Defence and Others v Arcepey Shipping Co SA, The Angel Bell 1980
The court considered whether a defendant should be allowed to pay his debts as they fell due despite an asset freezing order.
Held: The Mareva jurisdiction should not ‘improve the position of claimants’. Rather, it should prevent the injustice . .
Cited – A v C (Note) ChD 1980
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to . .
Cited – Third Chandris Shipping Corporation v Unimarine SA CA 1979
The court gave guidelines for the granting of Mareva injunctions as follows: ‘(i) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. . (ii) The plaintiff should give . .
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – Marriott v Chamberlain CA 26-May-1886
In an action for libel the defendant pleaded that the libel was true. The substance of the libel was that the plaintiff had fabricated a story to the effect that a certain circular letter purporting to be signed by the defendant had been sent round . .
Cited – Blair v Haycock Cattle Co 1917
. .
Cited – Beddow v Beddow CA 1878
The power in the section embraced the grant of an injunction ‘in any case where it would be right or just to do so’. . .
Cited – Rank Film Distributors v Video Information Centre CA 1980
The plaintiff film companies accused the defendants of pirating their films. They obtained Anton Piller orders which required the defendants to permit the plaintiffs to enter their premises to inspect and remove any unauthorised films, and three . .
Cited – Barclay-Johnson v Yuill 1980
The jurisdiction to make an asset freezing injunction applies though the defendant is not a foreigner or foreign based. Its essence is to reduce the risk of the defendant removing his assets from the jurisdiction and so stultifying any judgment . .
Cited – EMI v Pandit ChD 3-Dec-1974
The making of an order allowing the plaintiff’s to execute a search on the other party’s premises is in effect part of the process of discovery. Templeman J discussed the making of such orders ex parte: ‘if it appears that the object of the . .
Cited – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
Cited – Rahman (Prince Abdul) bin Turki al Sudairy v AbuTaha CA 1-Jun-1980
Lord Denning, MR said: ‘So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out . .

Cited by:
Cited – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Cited – Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
Cited – XX and Others v YY and Others ChD 2-Jul-2021
The first defendant applies for an order that the claimants are not entitled to pursue legal action against his lawyers in respect of funds over which the claimants claim a proprietary interest and paid to the first defendant’s lawyers as legal fees . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.183806

Piglowska v Piglowski: HL 24 Jun 1999

No Presumption of House for both Parties

When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be reluctant to allow repeated appeals from appeals so as to consume all the assets in legal costs, and lawyers must be aware and act accordingly.
Lord Hoffmann discussed the need to be cautious in reversing a first instance decision: ‘the exigencies of daily Court life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case but also of a reserved judgment based upon notes such as were given by the District Judge. These reasons should be read on the assumption that unless he has demonstrated to the contrary the Judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973 setting out the factors to take into account in making orders for ancillary relief]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.’

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Wood-borough, Lord Millett
Times 25-Jun-1999, Gazette 07-Jul-1999, Gazette 20-Oct-1999, [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FCR 481, [1999] 2 FLR 763, [1999] Fam Law 617
House of Lords, Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Appeal from – Piglowska v Piglowski CA 3-Nov-1997
The husband appealed against an order made on an ancillary relief application saying that the judge had refused to admit further evidence. . .
Cited – Evans v Evans (Practice Note) FD 1990
The parties had assets worth about andpound;350,000, most of which consisted of business assets which provided the family income and could not be sold. They ran up costs of andpound;60,000 in contesting the application for ancillary relief. The . .
Cited – Evans v Bartram HL 1937
When a defendant seeks to set aside a regular judgment which had been obtained by default, the test for setting it aside is: ‘In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must . .
Cited – M v B (Ancillary Proceedings: Lump Sum) CA 15-Oct-1997
The couple had two children aged 10 and 6 and the question was whether the wife should have a house which cost pounds 210,000, leaving the husband without enough to buy a property of his own, or a house costing pounds 135,000, leaving the husband . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Marsh v Marsh CA 1-Mar-1993
Appeals under the Family Proceedings Rules had to be read in conjunction with the CCR Order 37 r 6, and the judge hearing the appeal had discretion to substitute his own view for that of the court below. This is different from what applies on appeal . .
Cited – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Cited – Sansom v Sansom 1966
An appellate judge in ancillary proceedings who has seen the witnesses, is entitled to give weight to his advantages in having seen the witnesses and his experience in dealing with such issues. . .
Cited – Martin v Martin CA 10-Mar-1977
The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that . .

Cited by:
Applied – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Fidelity Management Sa and others v Myriad International Holdings Bv and others ComC 9-Jun-2005
. .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – AG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff PC 19-Jul-2005
(Akrotiri and Dhekelia) The defendant had appealed convictions for rape and attempted rape. He had criticised the arrangements for protecting the complainant when giving evidence, which had not complied with the 1999 Act. His appeal succeeded in . .
Cited – Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition) CA 2-Jul-2002
The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Crown Prosecution Service v Richards and Richards CA 27-Jun-2006
The court was asked how to resolve the conflict between a public policy imperative to deprive offenders of the fruits of their crime and the requirement that dependants are provided for after divorce when the only funds available for both are the . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
Cited – S v S FD 19-Mar-2008
The husband appealed against an ancillary relief order, and particularly as to an order that he should continue to pay maintenance for the joint lives of the parties rater than for five years. He was earning a substantial income but anticipated that . .
Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
Cited – Sibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Oxfordshire County Council v X and Others CA 27-May-2010
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .
Cited – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Camertown Timber Merchants Ltd and Another v Sidhu and Another CA 8-Sep-2011
The parties disputed a course of trading between them without formal contracts being used. The challenge now was as to the adequacy of the judge’s findings.
Held: The appeal failed. The judgment was ‘short, even perfunctory and Delphic.’ . .
Cited – Crann v Crown Prosecution Service Admn 27-Feb-2013
The defendant appealed by case stated against an order allowing the amendment of an information against him. He was first accused of failing to provide a specimen of breath for testing after being stopped and suspected of driving with excess . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Cited – PMS International Group Plc v Magmatic Ltd SC 9-Mar-2016
Overall Impression of Design is a Judgment
The respondent had alleged infringement of its registered design in the ‘Trunki’, a ride-on children’s suitcase. At first instance, the judge had held that the surface decorations were to be ignored. On appeal it had been held that the judge had . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.84735

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 advocate has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. Advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order. Threats of applications for wasted costs orders should not be used to intimidate opposing solicitors. He should ask three questions: Did he act improperly, unreasonably or negligently? Did that conduct cause unnecessary costs? Is it, in all the circumstances, just to make an order? In order to establish negligence it is necessary to show that the representative concerned acted in a way which no reasonably competent representative would act.
Sir Thomas Bingham MR said: ”Unreasonable’ also means what it has been understood to mean in this context for at least half a century . . ‘Unreasonable’ aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment but it is not unreasonable.’
[W]e are clear that ‘negligent’ should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: ‘advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;’ an error ‘such as no reasonably well-informed and competent member of that profession could have made: ‘. . We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.’
Sir Thomas Bingham MR said: ‘It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.’
Sir Thomas Bingham discussed the difficulty where a client seeks to refuse to waive privilege in a complaint against his lawyer: ‘So the respondent lawyers may find themselves at a grave disadvantage in defending their conduct of proceedings, unable to reveal what advice and warnings they gave, what instructions they received . . Judges who are invited to make or contemplate making a wasted costs order must make full allowance for the inability of respondent lawyers to tell the whole story. Where there is room for doubt, the respondent lawyers are entitled to the benefit of it. It is again only when, with all allowances made, a lawyer’s conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.’

Sir Thomas Bingham MR, Rose, Waite LJJ
Independent 04-Feb-1994, [1994] Ch 205, [1994] 3 All ER 848, [1994] EWCA Civ 40, [1994] 2 FLR 194, [1994] 3 WLR 462, [1994] Fam Law 560, [1994] EG 15, [1994] BCC 390, [1955-95] PNLR 636, [1997] Costs LR 268
Bailii
Supreme Court Act 1981 51(6), Courts and Legal Services Act 1990 62
England and Wales
Citing:
Cited – Edwards v Edwards 1958
. .
Cited – Currie and Co v The Law Society 1976
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: ‘[T]he set-off takes precedence over the solicitor’s particular lien, . .
Cited – Filmlab Systems International Ltd and Another v Pennington and Others ChD 9-Jul-1993
In civil litigation an application for a wasted costs order should only save in exceptional circumstances, be made after the trial. The court mentioned several dangers if applications were made at an interlocutory stage, among them the risk that a . .
Cited – Holden and Co (A firm) v Crown Prosecution Service 1990
It is part of the deterrent of the wasted costs procedure that solicitors are named and the adverse publicity is therefore an important deterrent to impropriety. . .
Cited – Fozal v Gofur CA 9-Jul-1993
An order for wasted costs against counsel could only be allowed with respect to acts done after 1 October 1991, with the new rules. . .
Cited – Gupta v Comer CA 1991
The plaintiff applied for an Order that costs be paid personally by the defendant’s solicitors on the basis that the solicitors had incurred such costs unreasonably and had failed to conduct the proceedings with reasonable competence and expedition. . .
Cited – Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991) CA 1992
The section provided that the Court could order a legal practitioner to pay ‘wasted costs’, which were defined as costs incurred by a party ‘as a result of any improper, unreasonable or negligent act or omission on the part of any representative’. . .
Cited – In re a Company (No 0012209 of 1991) ChD 1992
It is an abuse of the process of the court to make a statutory demand or present a winding-up petition based on a claim to which there is a triable defence. Where a statutory demand is made but disputed on reasonable grounds, the creditor may find . .
Cited – Myers v Rothfield CA 1938
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such . .
Cited – Locke v Camberwell Health Authority CA 23-May-1991
The court discussed the relative duties of solicitor and counsel. Taylor LJ set out the principles that: 1) In general a solicitor, is entitled to rely upon the advice of counsel properly instructed;
2) For a solicitor, without special . .
Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Cited – Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL 1972
The jurisdiction to order a legal professional to pay costs is primarily compensatory. The jurisdiction should not be attracted merely because of the lawyer’s bona fide mistake or error of judgment. . .
Cited – 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 . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Wilkinson v Wilkinson CA 1962
Absence of legal representative from a hearing of which he had been notified. Physical absence was considered as absence for the purpose of such a rule.
Ormerod LJ held that the provision in the Matrimonial Causes Act should be construed as . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
Cited – Sinclair-Jones v Kay CA 1988
The court was asked whether the costs of certain hearings should be paid by the solicitor or his client, and has regard to the solicitor’s responsibilities for the hearings going off. . .
Cited – Orchard v South Eastern Electricity Board CA 1987
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not . .
Cited – R and T Thew Ltd v Reeves (No 2) CA 2-Jan-1982
The remedy of an award of costs against a solicitor personally is only available to make good loss where the solicitor is guilty of inexcusable misconduct such as to merit reproof.
It is not always easy to separate the effect of a disciplinary . .

Cited by:
Cited – Livingstone and another v Frasso CA 9-Jul-1997
Solicitors appealed a wasted costs order. They appealed on the basis that the judge had not followed the appropriate procedure, which required a proper opportunity for the solicitors against an order is proposed, to show cause why the order should . .
Cited – Regina v Justices of Luton Family Proceedings Court; Her Honour Judge Pearce of Luton County Court; Director of Social Services of Bedfordshire County Council ex parte Abdul Rahman and Azra Bi Admn 16-Dec-1996
In the course of urgent children proceedings, counsel advised solicitors inappropriately to seek judicial review of a court decision. The application was persisted with despite warnings from the respondents that they intended to seek a wasted costs . .
Approved – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – White v White (Deceased) CA 20-Jan-2003
An appeal was made against an order refusing an award of costs against solicitors for the opposing party.
Held: The judge’s order saying that an aplication should have been forewarned earlier was made within his discretion, and was . .
Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – In Re Hickman and Rose (Solicitors) (Wasted Costs Order) (No 10 of 1999) CACD 19-Apr-2000
After a trial was aborted, the solicitors, acting on counsel’s advice made an application for bail under the rules applying to the custody time limits. An unreported case had already decided the point, namely that once the jury had ben sworn, the . .
Cited – Burrows v Vauxhall Motors Ltd; Mongiardi v IBBC Vehicles Ltd CA 19-Nov-1997
After acceptance of money paid into court in proceedings issued unnecessarily quickly, the taxing officer alone has the power to disallow costs.
Powers of the County Court to deal with costs unnecessarily incurred as the result of the premature . .
Mentioned – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .
Cited – Wagstaff v Colls and Another CA 2-Apr-2003
The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first . .
Cited – Regina v London Borough of Camden ex parte Margarita Martin Admn 25-Oct-1996
The court has no power to make a wasted costs order in favour of a party opposing an ex parte application. . .
Cited – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
Cited – Koo Golden East Mongolia (A Body Corporate) v Bank of Nova Scotia and others QBD 20-May-2008
Application for wasted costs order against solicitors. . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Neill v Crown Prosecution Service Admn 2-Dec-1996
Appeal against wasted costs order made against solicitor. He had information suggesting that an essential prosecution witness might not appear, but she did.
Held: The solicitor had acted correctly: ‘The function of committal is to see if there . .
Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
Cited – Casqueiro (In A Matter of Wasted Costs) v Barclays Bank Plc EAT 14-Jun-2012
casqueiroEAT2012
EAT PRACTICE AND PROCEDURE – Costs
Unlike for ‘ordinary costs’ under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 rule 41(1)(c), there is no power to refer wasted costs ordered . .
Cited – Joseph Hill and Company, Solicitors, Re Wasted Costs Order Made Against CACD 21-May-2013
The solicitors appealed against a wasted costs order made by the Crown Court as to their actions in the successful defence. They had not disclosed alibi evidence on advice from counsel on being unable to obtain proofs of evidence, until the day . .
Cited – Reeves and Co, Solicitors, Regina v CACD 24-Mar-2011
The solicitors appealed against a wasted costs order. On the morning of the trial, they had produced further evidence leading to the collapse of the trial.
Held: The appeal succeeded. The solicitors had not been given notice of the . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Leading Case

Updated: 02 November 2021; Ref: scu.88782

Tchenguiz v Director of The Serious Fraud Office and Others: CA 31 Oct 2014

The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the conflicting public interests which are in play.
Held: The appeal failed. The judge had correctly evaluated the conflicting public interests which were in play.
The sitations in which the question arises are highly fcatt sensitive and various, but the following principles emerged: ‘i) The collateral purpose rule now contained in CPR 31.22 exists for sound and long established policy reasons. The court will only grant permission under rule 31.22 (1) (b) if there are special circumstances which constitute a cogent reason for permitting collateral use.
ii) The collateral purpose rule contained in section 9 (2) of the 2003 Act is an absolute prohibition. Parliament has thereby signified the high degree of importance which it attaches to maintaining the co-operation of foreign states in the investigation of offences with an overseas dimension.
iii) There is a strong public interest in facilitating the just resolution of civil litigation. Whether that public interest warrants releasing a party from the collateral purpose rule depends upon the particular circumstances of the case. Those circumstances require careful examination. There are decisions going both ways in the authorities cited above.
iv) There is a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution.
v) It is for the first instance judge to weigh up the conflicting public interests. The Court of Appeal will only intervene if the judge erred in law (as in Gohil) or failed to take proper account of the conflicting interests in play (as in IG Index).’

Jackson, Sharp, Vos LJJ
[2014] EWCA Civ 1409
Bailii
England and Wales
Citing:
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – IG Index Ltd v Cloete CA 31-Jul-2014
In the course of unfair dismissal proceedings, the defendant had disclosed possession of confidential materials of his former employer. The employer began these proceedings based on the materials. Only at a later point when he appointed solicitors . .
Cited – Crown Prosecution Service and Another v Gohil CA 26-Nov-2012
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement . .
Cited – Marlwood Commercial Inc v Kozeny CA 25-Jun-2004
Letters of request. The claimants brought an action for fraudulent misrepresentation. The documents disclosed by the defendants indicated there had been criminal conduct including bribery of the Azeri authorities. The Director of the SFO served . .
Cited – Smithkline Beecham Plc/BASF AG v Generics (UK) Limited / Smithkline Beecham Plc CA 25-Jul-2003
The claimant had been involved in patent infringement proceedings. Papers had been disclosed to them under confidentiality conditions imposed by the judge. In these subsequent proceedings, they sought leave to use the material.
Held: An order . .
Cited – Frankson and Others v Secretary of State for the Home Department; Johns v Same CA 8-May-2003
The claimants sought damages for injuries alleged to have been received at the hands of prison officers whilst in prison. They now sought disclosure by the police of statements made to the police during the course of their investigation.
Held: . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Crest Homes Plc v Marks HL 1987
The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in . .
Appeal from – Tchenguiz and Others v The Serious Fraud Office ComC 28-Jul-2014
The applicant sought orders as to the disclosure and use of documents disclosed in the current proceedings for use in a second set of proceedings in Guernsey.
Held: Two orders were granted, and one refused. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 November 2021; Ref: scu.538194

Dunhill v Burgin: SC 12 Mar 2014

Lack of Capacity – Effect on Proceedings

The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the proceedings for her)? Second, what happens if legal proceedings are settled or compromised without it being recognised that one of the parties lacked that capacity’
Held: Whether a party has capacity to conduct proceedings under CPR Pt 21 depended upon his capacity to conduct the claim or cause of action which the claimant in fact had, rather than any claim formulated for her by her lawyers. A consent order based on the settlement of a claim by a claimant who did not have capacity but remained without a litigation friend was not valid whether or not she was legally represented.
Held: The test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it is common ground that Mrs Dunhill did not have the capacity to conduct this claim.

Lady Hale, Deputy President, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed
[2014] COPLR 199, [2014] UKSC 18, [2014] 2 All ER 364, [2014] WLR(D) 122, (2014) 17 CCL Rep 203, [2014] 1 WLR 933, (2014) 137 BMLR 1, [2014] RTR 16, [2014] PIQR P13, UKSC 2012/0136, UKSC 2012/0257
Bailii, Bailii Summary, WLRD, SC Summary (1), SC (1), SC Summary (2), SC (2)
Mental Capacity Act 2005, Civil Procedure (Amendment) Rules 2007 21.1(2)(c)
England and Wales
Citing:
Cited – Hart v O’Connor, O’Connor O’Connor PC 22-May-1985
(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
At First Instance (1) – Dunhill v Burgin QBD 7-Mar-2011
The claimant asked that a settlement of her personal injuries claim be set aside on the basis that it had been made at a time when she lacked capacity, and that the agreement had required approval by the court which was not sought. The parties were . .
At CA – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
At First Instance (2) – Dunhill v Burgin (No 2) QBD 9-Nov-2012
The Court was asked whether CPR 21.10 has any application ‘where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability?’
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Dietz v Lennig Chemicals Limited HL 1969
Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The . .
Cited – Drinkall (A Minor Who Sues By Her Mother and Litigation Friend) v Whitwood CA 6-Nov-2003
The claimant, a child, had sought damages. An agreement was made to compromise the claim. Later the child sought to withdraw from it.
Held: No court order had been made to approve the compromise, and therefore no binding arrangement existed. . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Cited – Tameside and Glossop Acute Services NHS Trust v Thompstone and others CA 17-Jan-2008
The court set out the legal principles applying when making a Periodical Payments Order in an award of damages for serious personal injury. The periodical payments payable to the claimant in respect of his care costs should be calculated by . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – In re Grosvenor Hotel, London (No 2) CA 1964
Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to . .

Cited by:
Cited – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.522382

Huntress Search Ltd v Canapeum Ltd and Another: QBD 28 May 2010

The court was asked whether it had been correct to refuse relief to the High Court Enforcement Officer in the form of a restraint on an interpleader when this was sought by the applicant.
Held: The test was whether there was evidence entitling the court to conclude that DSI (the company whose premises had been seized) could properly be said, in the light of the limited case law available, to have incurred a ‘real and substantial grievance’. In this case the officers had attended at an address different from that given, and had refused to listen to explanation or to examine documents. The sherriff’s officers had not been made available to the court for examination. The consequences had been costly business interruption leading to the destruction of the contents of a production line. The decision was open to the Master on the evidence.

Eady J
[2010] EWHC 1270 (QB)
Bailii
Courts Act 2003 99, Civil Procedure Rules Sch 1, High Court Enforcement Officers Regulations 2004
England and Wales
Citing:
Cited – Winter v Bartholomew 24-Jan-1856
A sheriff entered the house of A and seized therein his goods, and also goods belonging to the execution debtor. A. brought an action of trespass against the sheriff, who thereupon obtained an interpleader summons, and the Judge ordered that the . .
Cited – Neumann v Bakeaway Ltd CA 1983
(Note) The court considered when to grant relief to the Sherriff against an interpleader on a compliant by a debtor.
Held: The appropriate test to apply was whether the claimant had suffered a ‘real and substantial grievance’. The court . .
Cited – Smith v Critchfield CA 24-Apr-1885
Protection of Sherriff in Execution Against Goods
The court considered when relief should be granted to the Sherriff issuing executing against a complaint by the debtor. Brett MR said: ‘It seems to me that the sheriff is entitled to protection in respect of the whole of the act which through error . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 November 2021; Ref: scu.416216

Compagnie Financiere du Pacifique v Peruvian Guano Co: CA 1882

Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’, because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v Monte Video Gas Co (1880) 5 QBD 556, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control.
I agree that the party issuing the summons for a further affidavit is bound by the description given in the sources of information mentioned in Jones v Monte Video Gas Co: that is to say, he is bound to a certain extent: I do not think that he would be bound absolutely by every description of their contents if the Court can see, from the nature of them, that the description of them is not or may not reasonably be correct. I do not think that the Court is bound any more on the second summons than on the first to accept absolutely everything which the party swearing the affidavit says about the documents, but the Court is bound to take his description of their nature. The question must be, whether from the description either in the first affidavit itself or in the list of documents referred to in the first affidavit or in the pleadings of the action, there are still documents in the possession of the party making the first affidavit which, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring the further affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs’ case, but also at the statement of the defence and the defendants’ case.’

Brett LJ
(1882) 11 QBD 55
England and Wales
Cited by:
Cited – Schetky v Cochrane and the Union Funding Co 1918
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.253699

Marrinan v Vibart: CA 1962

The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. Salmon J said: ‘The administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation.’

Salmon J
[1963] 1 QB 234
England and Wales
Cited by:
Appeal from – Marrinan v Vibart CA 2-Jan-1962
Two police officers gave evidence in a criminal prosecution of others, that the plaintiff, a barrister, had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Powell and Another v Boldaz and others CA 1-Jul-1997
The plaintiff’s son aged 10 died of Addison’s Disease which had not been diagnosed. An action against the Health Authority was settled. The parents then brought an action against 5 doctors in their local GP Practice in relation to matters that had . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Silcott v Commissioner of Police of the Metropolis CA 24-May-1996
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.245752

AEY v AL: FD 21 Dec 2020

Continuation of Extended Civil Restraint Order

Mrs Justice Knowles
[2020] EWHC 3539 (Fam)
Bailii
England and Wales

Litigation Practice

Updated: 02 November 2021; Ref: scu.657632

Equipe Regeneration Ltd v Higgins Construction Ltd and Others: TCC 3 Dec 2020

Mr Roger ter Haar QC
[2020] EWHC 3293 (TCC)
Bailii
England and Wales

Litigation Practice

Updated: 02 November 2021; Ref: scu.663170

Kimathi and Others v Foreign and Commonwealth Office: QBD 18 Mar 2016

Ruling in relation to Defendant’s application for an order ‘directing that the issues of double actionability and limitation be heard and determined as preliminary issues’

Stewart J
[2016] EWHC 600 (QB)
Bailii
England and Wales
Citing:
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 26-Nov-2015
Reasns on decisions on applications for exclusion of certain witness statements . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 16-Dec-2015
. .

Cited by:
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 31-Oct-2017
Third judgment in respect of amendments to the individual Particulars of Claim . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 28-Nov-2017
Application to admit contents of book into evidence. . .
See Also – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.562173

Douglas v O’ Neill: QBD 9 Feb 2011

The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
Held: The defendant’s application succeeded. There had been no breach of any court order, and much of the material was recent. A surveillance DVD or videotape is a document, not a piece of witness evidence. The overriding objective to be applied in considering it admission is that of enabling the Court to deal with cases justly: ‘If the fact that a document is video surveillance were to be disclosed in Part 2 that would inevitably alert a fraudulent Claimant to the fact of surveillance and would be likely to deprive a defendant of the privileged opportunity to continue surveillance and to obtain evidence of the kind sought, namely evidence to demonstrate inconsistencies between the truth and the evidence being given by a Claimant . . the issue of ambush comes to this –are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the defendant from relying upon it?’

Collender QC J
[2011] EWHC 601 (QB)
Bailii
England and Wales
Citing:
Cited – Sally Rall v Ross Hume CA 8-Feb-2001
A surveillance film of a claimant was a document within the rules. The rules make no specific provision for the admission of such material for the purposes of cross examination of a claimant. A party proposing to use such material was under all the . .
Cited – Uttley v Uttley 18-Jul-2001
The Claimant complained about the late disclosure of surveillance evidence.
Held: Balancing the Defendant’s entitlement to use surveillance evidence effectively, against the general case management goal of openness and a ‘cards on the table’ . .
Cited – O’Leary v Tunnelcraft Ltd 2009
Surveillance took place over a long period of time but was not disclosed until a short time before a settlement meeting and trial. The claimant objected.
Held: The court identified this as a form of trial by ambush. From the time of the . .
Cited – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 01 November 2021; Ref: scu.439673

Tchenguiz and Others v Thornton UK Llp and Others: ComC 20 Feb 2015

The court considered appropriate directions where the pleadings presented by the parties had flouted the pleadings rules set out in the Commercial Court practice guide and exceeded by a considerable way, the maximum length. The claim in esence was that the defendant had conspired to induce the Serious Fraud Office (the SFO) to investigate the claimants on a false basis by the unlawful means of making statements to the SFO which the defendants did not believe to be true.
Held: ‘unless adverse costs orders are made in cases of flagrant non-compliance, practitioners who are well aware of the principles of pleading and the provisions of the Commercial Court Guide will continue to overlook them, as happened here. In my view, the appropriate order in this case, and the order which I will make, is that the particulars of claim are struck out, the costs of drafting the particulars of claim are disallowed, and fresh particulars of claim no longer than 45 pages and otherwise complying with Appendix 4 of the Commercial Court Guide should be served within 21 days.’

Leggatt J
[2015] EWHC 405 (Comm)
Bailii
England and Wales
Citing:
Cited – Standard Bank Plc v Via Mat International Ltd and Another CA 3-May-2013
Aikens LJ said: ‘Overlong pleadings and written submissions . . which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales.’ . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.543101

Henley v Bloom: CA 9 Mar 2010

Different claims allowed re-litigation

The parties had had long standing disputes as landlord and tenant. They were at one point settled, but the tenant claimed again, and the landlord sought to strike out the claim as an abuse of process, saying the claimant had failed to comply with the pre-action protocol. The tenant now appealed.
Held: The issue was whether a fair trial was now impossible. The tenant could have brought this claim as part of the earlier one. However it did not amount to an abuse, since different facts were involved. The settlement agreement shut out only certain kinds of further claim, not including this one, and he had made no representation that no such claim would be brought. The defendant had not established that a fair trial was impossible, and the appeal succeeded.

Lord Neuberger MR
[2010] EWCA Civ 202, [2010] NPC 29, [2010] 1 WLR 1770
Bailii
Landlord and Tenant Act 1985 11(1)(a)
England and Wales
Citing:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Greenhalgh v Mallard CA 1947
Somervell LJ set out the concept of abuse of process in civil cases on a plea of res judicata: ‘res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but . . it covers issues or facts which are so . .
Cited – Taylor v Anderson and Taylor Brothers Plant Hire Ltd CA 2002
Chadwick LJ said: ‘proceedings ought not to be struck out unless an unequivocal affirmative answer can be given to the question: is there a substantial risk that a fair trial is impossible?’ . .
Cited – Stuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .

Lists of cited by and citing cases may be incomplete.

Housing, Landlord and Tenant, Litigation Practice

Updated: 01 November 2021; Ref: scu.402552

In re Beddoe, Downes v Cottam: CA 1893

In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the court, they are entitled to an indemnity for their costs out of the trust fund. The Order provided: ‘Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estimates and trusts, shall be in the discretion of the Court or judge . .’

[1893] 1 Ch 547
Order LXV Rule 1
England and Wales
Cited by:
Cited – Singh v Bhasin and Others ChD 21-Aug-1998
A trustee who defended a claim would always be at risk of an order to pay the costs personally even if advised by counsel to defend if he did not seek a protective Beddoe order before defending. . .
Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Cited – Re Biddencare Ltd ChD 1994
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself. . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Dagnell and Another v J L Freedman and Co and Others HL 5-Apr-1993
The plaintiffs, trustees of the will, sued the solicitors who had prepared it in negligence. They issued the writ some 7 months before the limitation date for their claim, but did not then serve it. They were advised first to make an application to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Leading Case

Updated: 01 November 2021; Ref: scu.183455

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd: PC 1975

Restraint of Second Action as Abuse

Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration that the sale had been a sham and a fraud. That allegation was dropped, and judgement entered for the bank. It then began a second action, the current one. The bank sought to restrain the second action, saying it was an abuse.
Held: The issues in this action should have been raised in the first. There had been opportunity to raise the the issues as to incorrect accounting. Not having challenged those matters in the first action, and having suffered judgment, it would be wrong to allow a second action, and an estoppel by record arose. ‘it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.’ However, litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court

Morris of Borth-y-Guest, Cross of Chelsea, Kilbrandon LL
[1975] AC 581
Commonwealth
Citing:
Approved – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:
Cited – J A Pye (Oxford) Limited v South Gloucestershire District Council CA 26-Oct-2000
The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court . .
Cited – Berry v Post Office Investigation Department CA 11-Nov-1996
The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – C (A Minor) v Hackney London Borough Council CA 10-Nov-1995
The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Cited – Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.185838

Austin and Others v Miller Argent (South Wales) Ltd: CA 29 Jul 2011

The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter of discretion. At the hearing it was not clear that any claimant would be able to proceed, and it had since become clear that After The Event costs insurance would not be obtainable. The applicants had not complied with the requirements for the making of an order, and none had yet issued proceedings. The judge had already adjourned the application to allow progress by the potential claimants, and his refusal to allow a further adjournment could not be criticised.
The defendants had already issued a bill of costs for over andpound;250.000. The potential claimants said that the Aarhus Convention should apply to limit them. On analysis and after concessions by the defendant the court established that no potential cliamant should to date face any liability greater than andpound;362. The Aarhus convention claim had to have been raised in the court below, and there was no evidence before the court to apply it now.
As to the protective costs order, the sums before the court, after undertakings by the defendant, were not excessive: ‘every uninsured person who embarks upon litigation, must accept some degree of cost risks. There are strong policy reasons why this should be so, not least to maintain proper discipline over litigation, to incentivise reasonable litigation behaviour and to reduce the financial burden upon those who are vindicated. The Aarhus Convention does not require that environmental litigation should be cost free, merely that it should be not prohibitively expensive.’

Pill, Jackson, Gross LJJ
[2011] EWCA Civ 928
Bailii
Civil Procedure Rules 19, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters made at Aarhus, Denmark on 25 June 1998
England and Wales
Citing:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
Cited – Morgan and Another v Hinton Organics (Wessex) Ltd CA 2-Mar-2009
The claimants had alleged that smells from a composting site near their homes constituted a private nuisance. Following the discharge of an interim injunction, Judge Seymour ordered the claimants to pay the costs of the injunction proceedings. The . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Environment

Updated: 01 November 2021; Ref: scu.442415

D v National Society for the Prevention of Cruelty to Children: HL 2 Feb 1977

Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of Glaisdale said: ‘I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.’
Lord Diplock explained the rationale of the rule in Marks v Beyfus as being plain: if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.
Lord Hailsham of St. Marylebone said: ‘The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop’.

Lord Simon of Glaisdale, Lord Diplock, Lord Hailsham of St. Marylebone
[1978] AC 171, [1977] 2 WLR 201, [1977] 1 All ER 589, [1977] UKHL 1
Bailii
England and Wales
Citing:
Explained – Marks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
Cited – Attorney-General v Mulholland CA 1963
The court rejected a claim for protection from disclosure of matters passing between journalists and their sources: ‘it is said that however these questions were and however proper to be answered for the purpose of this inquiry, a journalist has a . .

Cited by:
Cited – The Chief Constable of the Greater Manchester Police v McNally CA 25-Jan-2002
The claimant sought damages against the police for malicious prosecution and otherwise. He sought disclosure of whether a party referred to in the case as X, had at any time been a paid informer. The police appealed an order to disclose this. . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – Arias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Cited – Powell v Chief Constable of North Wales Constabulary CA 16-Dec-1999
Roch LJ said: ‘When an issue of public interest immunity is raised, the court’s first duty is to weigh the public interest in preserving the immunity against the public interest that all relevant information which might assist a court to ascertain . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.181202

In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association: CA 21 Dec 2000

The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material circumstances in a case might give rise to a reasonable apprehension of bias, the test was whether objectively that appearance might be reasonable. It was not a subjective test of whether the lesser tribunal was actually biased. There is little substance to the distinction between a ‘real danger’, and a ‘real possibility’ of bias. Circumstances beyond those apparent to the parties might be taken into account. The judge’s own account of those circumstances can be taken into account. In this case a possible connection with a party meant that the judge should have recused herself. The court summarised the principles to be derived from this line of cases as follows: ‘(1) If a Judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the Judge is to be presumed. (3) The Court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Judge might not have been impartial. If they do the decision of the Judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the Court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.’

LJ Brooke, Lord Phillips MR, Robert Walker LJ
Times 02-Feb-2001, [2001] ICR 564, [2001] 1 WLR 700, [2000] EWCA Civ 350, [2000] All ER (D) 2425
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Appeal from – In Re Medicaments and Related Classes of Goods (No 2) RPC 17-Nov-2000
Part way into a trial, one of the judges in a case applied for a position with a company. She discovered that a director of that company was due to give evidence. She brought the circumstances to the attention of the remaining court and parties. She . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – Regina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – Regina v Rand 1866
r_rand1866
A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Webb and Hay v The Queen 30-Jun-1994
(Australia) Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – De Cubber v Belgium ECHR 26-Oct-1984
The applicant a Belgian, had been convicted of forgery. He said that the court had not been an impartial tribunal because one of the judges had also acted as an investigating judge in his case. Amongst the grounds on which it was contended that . .
Cited – Piersack v Belgium ECHR 1-Oct-1982
Hudoc applicant convicted of murder complained that his right to a fair trial under Article 6(1) had been denied because the trial court had been presided over by a Judge who, when senior deputy procureur, had . .
Cited – Borgers v Belgium ECHR 30-Oct-1991
Hudoc The Court reconsidered the nature of the involvement of the Procureur general’s department in decisions taken by the Belgian Cour de Cassation. The Court sitting in plenary session reached, by a majority, a . .
Cited – Hauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Gregory v The United Kingdom ECHR 25-Feb-1997
gregory_ukECHR1997
A judge’s direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial for the defendant. In discussing the protection of the secrecy of jury deliberations: ‘The court acknowledges that the rule governing the . .
See Also – In Re Medicaments and Related Classes of Goods RPC 14-Apr-1999
Before granting leave to review the exemption of a class of goods from the resale price maintenance prohibition, there must be established prima facie evidence of a material change in circumstances, which might have led the earlier court to a . .

Cited by:
Cited – Regina v Williams; Regina v Saunby; Regina v Ashby; Regina v Schofield; Regina v Marsh, Regina v Webb; Regina v Leese; Regina v Dodds; Regina v Clarkson; Regina v English CMAC 30-Jul-2001
The appellants variously claimed their convictions should be set aside because the court which had heard their cases was not independent and impartial. They alleged in particular that questions of military discipline and morale would affect the . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Skjevesland v Geveran Trading Co Ltd CA 30-Oct-2002
The debtor’s wife was personally acquainted with counsel for the petitioner in his bankruptcy examination. He sought that it be set aside.
Held: Whereas a judge had a duty to be independent of the parties, no such duty fell on counsel. A court . .
Cited – Wilkinson v S and Lord Chancellor’s Department CA 4-Feb-2003
The appellant challenged his imprisonment for contempt of court. At and after a family court hearing he had verbally and physically assaulted other parties. He had been detained overnight, then sentenced to six months imprisonment.
Held: Where . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Meerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Applied – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
See also – In re Medicaments and Related Classes of Goods (No 4) CA 26-Jul-2001
The parties had expended very considerable sums preparing for a hearing. The hearing became abortive when it was questioned whether a member of the court had given the appearance of bias. The parties sought payment of their wasted costs from the . .
Cited – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Cited – Hewitt, Regina (on The Application of) v Denbighshire Magistrates’ Court Admn 22-Oct-2015
The claimant, a hunt protester appealed against her conviction for harassment saying that the judge had given the appearance of being biased. He had, on being asked denied being a member of the hunting community. She said that he had whilst in . .
Cited – Ameyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.82055

Director General of Fair Trading v First National Bank: HL 25 Oct 2001

The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the Regulations. It was by way of a default condition, rather than a penalty. The provision excluding the award of statutory interest after judgment did not operate to exclude the contractual term, and the inconsistency would not defeat the regulations if such clauses were only allowed to operate if they fell fairly and squarely within the section. The 1999 Regulations set up a ‘a dual system of ex casu challenges and pre-emptive or collective challenges by appropriate bodies’, and ‘The system of preemptive challenges is a more effective way of preventing the continuing use of unfair terms . . than ex casu actions.’
Lord Bingham explained the regulations: ‘A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith. The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty. The illustrative terms set out in Schedule 3 to the Regulations provide very good examples of terms which may be regarded as unfair; whether a given term is or is not to be so regarded depends on whether it causes a significant imbalance in the parties’ rights and obligations under the contract. This involves looking at the contract as a whole. But the imbalance must be to the detriment of the consumer; a significant imbalance to the detriment of the supplier, assumed to be the stronger party, is not a mischief which the Regulations seek to address. The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4 (1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.’

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Millett Lord Rodger of Earlsferry
Times 01-Nov-2001, [2002] 1 AC 481, [2001] UKHL 52, [2001] 3 WLR 1297, [2002] 1 LLR 489, [2001] 2 All ER (Comm) 1000, [2002] 1 All ER 97, [2002] ECC 22, [2002] 1 Lloyd’s Rep 489
House of Lords, Bailii
Unfair Terms in Consumer Contracts Regulations 1994 (1994 No 3159), County Courts (Interest on Judgment Debts) Order 1991 (1991 No 1184), Consumer Credit Act 1974, County Courts Act 1984 71, Council Directive 93/13/EEC (OJ 1993, L95, p 29) on unfair terms in consumer contracts
England and Wales
Citing:
At First Instance – Director General of Fair Trading v First National Bank Plc ChD 30-Jul-1999
The claimants sought an injunction under the regulations to prevent the defendant bank from including in any of its agreements a clause allowing them to claim interest on judgments on regulated agreements. . .
Appeal from – Director General of Fair Trading v First National Bank Plc CA 15-Sep-1999
A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by . .
Cited – In re Sneyd; Ex parte Fewings CA 1883
The mortgagee’s costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the . .
Cited – Economic Life Assurance Society v Usborne HL 1902
If the loan agreement provides that the contract term for payment of interest survives judgment, then the contract term remains enforceable after judgment. Lord Halsbury said: ‘My Lords, it seems to me that Fry LJ in the case of Ex parte Fewings . . . .

Cited by:
Cited – Bankers Insurance Company Limited v South, Gardner QBD 7-Mar-2003
The two defendants had been involved in a jet-ski accident on holiday in Europe. The claimant sought a declaration that it was not liable to indemnify its insured under the holiday insurance under which they travelled. The policy excluded liability . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Cited – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
Cited – Office Of Fair Trading v Foxtons Ltd CA 2-Apr-2009
The OFT had sought and obtained an injunction regarding the use of certain standard terms in their estate agency business. Both parties appealed.
Held: The OFT’s appeal succeeded. The court had been wrong to restrict the effect of the . .
Cited – The Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
Cited – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Cited – The Office of Fair Trading v Ashbourne Management Services Ltd and Others ChD 27-May-2011
The OFT alleged that the defendant companies had been engaged in breaches of the Act and the Regulations in their practices in selling gym memberships. The defendant were selling and managing memberships for gyms. They advised as to the different . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Rochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .
Cited – Perpetual Trustee Co Ltd v Khoshaba 20-Mar-2006
Austlii (Supreme Court of New South Wales – Court of Appeal) CONTRACTS – Unjust contracts – Determination that a contract ‘unjust’ – Appellate review – Nature of decision appealed from – Conclusion that ‘unjust’ . .
Cited – Du Plessis v Fontgary Leisure Parks Ltd CA 2-Apr-2012
The claimant, who owned a holiday mobile home on the respondent’s site challenged the raising of site fees, saying that the contract was unfair. Previously all site fees were equal within the site, but the respondent had introduced a scheme which . .
Cited – Chubb and Another v Dean and Another ChD 24-Apr-2013
The court considered whether it had power to award a post judgment interest at a contractual rather than the statutory interest rate.
Held: There is no power of the court in this claim to add any amount beyond the statutory interest to the . .
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.166701

Prudential Assurance Co Ltd v Prudential Insurance Co of America: ChD 20 Dec 2002

The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of others. The protection from repetition before a court of admissions made ‘without prejudice’ should be limited to those occasions where the public interests underlying the rule were plainly applicable. The ‘without prejudice’ rule must be applied carefully and only in cases to which the public interest which underlies the rule requires it to be applied: ‘Article 10 [ECHR, s.12(1) of the Human Rights Act 1998] confers on everyone the right of freedom to expression, including the right ‘to receive and impart information and ideas without interference by public authority and regardless of frontiers’. But that right is subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the rights of others. Prima facie, therefore, the right is engaged by the ‘without prejudice’ rule but justified by the public interests which underlie it. But what this part of the case does is emphasise the need to apply the ‘without prejudice’ rule with restraint and only in cases to which the public interests underlying the rule are plainly applicable.’

Sir Andrew Morritt VC
Times 02-Jan-2003, [2002] EWHC 2809
Bailii
European Convention on Human Rights 10
England and Wales
Cited by:
Appeal from – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Cited – Wilkinson v West Coast Capital and others ChD 22-Jul-2005
A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The . .
Cited – Framlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.178694

Lloyd v Google Llc: QBD 8 Oct 2018

No Damage – No extra jurisdiction Service

Application to serve proceedings here – allegation that over some months Google acted in breach its duty under the 1998 Act by secretly tracking the internet activity of Apple iPhone users, collating and using the information it obtained by doing so, and then selling the accumulated data. The method by which Google was able to do this is generally referred to as ‘the Safari Workaround’.
Held: The facts alleged in the Particulars of Claim did not support the contention that the Representative Claimant or any of those whom he claimed to represent had suffered ‘damage’ within the meaning of DPA s 13. The Representative Claimant failed to establish that the claim was one arguably within PD6B 3.1(9), or that it had a real prospect of success, and permission to serve these proceedings on Google outside the jurisdiction was refused.

Warby J
[2018] EWHC 2599 (QB), [2018] WLR(D) 636
Bailii, WLRD
Data Protection Act 1998
England and Wales

Information, Jurisdiction, Litigation Practice

Updated: 01 November 2021; Ref: scu.625543

Heath v Tang, Stevens v Peacock: CA 11 Aug 1993

The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to pursue an appeal; in the second, no trustee had been appointed.
Held: A bankrupt may not personally appeal against the judgment on which the bankruptcy order made. The court set out the duties of court in supervising actions for and against a bankrupt. The jurisdiction conferred by s.303(1) protects a bankrupt from injustice which might otherwise be caused by his inability to bring proceedings outside the bankruptcy jurisdiction and, in an appropriate case, permits a bankrupt to apply for an order that the trustee must make an application or bring a claim or allow the bankrupt to conduct proceedings in the name of the trustee.
Hoffmann LJ noted that the bankrupt’s estate vests in his trustee when appointed under section 306 of the 1986 Act, and, under section 285(3) no creditor has, after the making of a bankruptcy order, any remedy against the property or person of the bankrupt in respect of debts provable in the bankruptcy. The effect is ‘that the bankrupt ceases to have an interest in the either his assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge.’

Hoffmann LJ
Independent 14-Oct-1993, Times 11-Aug-1993, [1993] 4 ALL ER 694, [1993] 1 WLR 1421
Insolvency Act 1986 306 285(3)
England and Wales
Cited by:
Cited – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Cited – Williams v Glover and Another ChD 4-Jun-2013
The company’s liquidator had refused to assign to its former directors a claim for a reduction in corporation tax which they were funding.
Held: Such a claim did not constitute property within section 436, and was not a chose capable of . .
Cited – Wordsworth v Dixon CA 1997
The bankrupt had been a defendant in the action brought by the plaintiff. The court considered his standing to appeal.
Held: The right to appeal vested in the trustee. Sir Thomas Bingham MR referred to the case of Heath v Tang and said: ‘that . .
Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.81297

Skp KS v Kveta Polhosova: ECJ 8 Nov 2012

ECJ Reference for a preliminary ruling – Lack of adequate information on the factual and legal context of the dispute in the main proceedings – Questions submitted in a context which precludes any useful answer – Lack of information on the reasons justifying the need for a reply to the questions referred – Manifest inadmissibility

A. Borg Barthet P
C-433/11, [2012] EUECJ C-433/11
Bailii
European

Litigation Practice

Updated: 01 November 2021; Ref: scu.466011

G v G (Minors: Custody Appeal): HL 25 Apr 1985

The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong’, ‘plainly wrong’, or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible’.
Lord Fraser of Tullybelton said: ‘The reason for the limited role of The Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343 apply.’ and
After quoting Asquith LJ, Lord Fraser continued: ‘I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge.’

Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Diplock, Lord Edmund-Davies, Lord Bridge of Harwich
[1985] 1 WLR 647, [1985] 1 WLR 647, [1985] 2 All ER 225, [1985] UKHL 13, [1985] FLR 894
Bailii
England and Wales
Citing:
Cited – In re F (a Minor) (Wardship: Appeal) CA 1976
Bridge LJ said: ‘The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, erred in law or applied any wrong principle. On the view I take, his error was in the balancing . .
Approved – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Approved – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Appeal from – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:
Cited – In re B (a Minor) (Adoption: Natural parent) HL 17-Dec-2001
The parents of a child were not married. The mother stated and had maintained her disinterest in the child from birth, and the father had been caring for the child. The local authority looked to find a fostering place with a view to adoption. The . .
Approved – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – Mclouglin v Jones and others CA 27-May-2005
Application for permission to appeal against striking out of part of damages schedule.
Held: Limited leave given. . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – In Re P (Minors) (Contact) CA 15-May-1996
The father appealed an order refusing him direct contact with the child. The judge had made the order because he considered that the mother’s hostility to contact made it likely that her health would suffer if contact was ordered, and that the . .
Cited – Down Lisburn Health and Social Services Trust and Another v H and Another HL 12-Jul-2006
The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – AM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
Cited – Brady v Norman QBD 26-May-2010
The claimant appealed against refusal of the Master to extend the 12 month limitation period in his proposed defamation claim. The allegations related to a dispute at an Aslef barbecue, and later of forgery. The claimant was a former General . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – C v V CoP 25-Nov-2008
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. . .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Leading Case

Updated: 01 November 2021; Ref: scu.231167

McLaughlin and Others v Newall: QBD 31 Jul 2009

The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher there. The claimants said that in pleading justification, the defendant set aside the basis of the compromise agreement, and that the terms of any apology not being settled, no compromise had been achieved.
Held: Though it is not an absolute rule, the terms of the apology were necessary. ‘There are two main reasons why express agreement on the actual words of the apology will generally be essential and crucial, rather than subsidiary and peripheral. First, the principal objective of most defamation actions is the protection and restoration of the Claimant’s reputation, and an appropriately-worded apology is the clearest and most effective means of achieving this goal. Second, it is well known to everyone who has practised in this area of law that the negotiation of the precise words of the apology is one of the most delicate and precarious parts of any settlement, since the honour and pride of both parties are involved, and the disputed wording often assumes greater importance than the observer would regard as rational. To leave the apology to the last is to store up trouble.’ Here the defendant’s solicitors had made the compromise expressly dependent on the agreement of the terms.
The answer was in the doctrine of election: ‘ If a party has formally elected between one of two incompatible courses in litigation, the court will not allow him also to run the alternative and inconsistent case. ‘ But no election had yet been made. The defendant had no prospect of defending on the basis of there being an agreement in place.

[2009] EWHC 1925 (QB)
Bailii
England and Wales
Citing:
Applied – Western Broadcasting Services v Seaga PC 29-Mar-2007
(Jamaica) The Claimant was the former Prime Minister of Jamaica. The Defendant was a radio broadcaster which had transmitted a programme said to be defamatory of him. The parties agree a settlement on terms including publication of ‘an apology . .
Cited – Lissenden v CAV Bosch Ltd HL 1940
The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue . .
Cited – Yarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .
Cited – Adelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
Cited – Express Newspapers v News (UK) plc 1990
If summary judgment is given to one party on his claim, it must also be given on a counterclaim made on the same basis by the defendant. The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) can curtail a . .
Cited – Banque des Marchands de Moscou (Koupetschesky) v Kindersley CA 1951
Sir Raymond Evershed MR discussed the need to keep the doctrine against approbation and reprobation within limits. . .
Cited – Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another ChD 5-Jul-2001
Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 01 November 2021; Ref: scu.375079

British Airways Board v Laker Airways Limited: HL 1985

The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful under the Sherman and Clayton acts, but were not unlawful in English law. The English courts were therefore not the forum conveniens, and the injuncion was refused. In order for the court to issue a restraining injunction, it was necessary that the conduct of the party being restrained should fit ‘the generic description of conduct that is ‘unconscionable’ in the eye of English law’. ‘The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law.’
Lord Diplock set out two principles: ‘The second proposition, that of English law, was understood by your Lordships to have been common ground between the parties, at any rate throughout the lengthy hearing of the appeal; no argument casting any doubt upon it was advanced. The proposition is that, even if the allegations against B.A. and B.C. in the complaint in the American action can be proved, they disclose no cause of action on the part of Laker against B.A. or B.C. that is justiciable in an English court. The Clayton Act which creates the civil remedy with threefold damages for criminal offences under the Sherman Act is, under English rules of conflict of laws, purely territorial in its application, while because the predominant purpose of acts of B.A. and B.C. that are complained of was the defence of their own business interests as providers of scheduled airline services on routes on which Laker was seeking to attract customers from them by operating its Skytrain policy, any English cause of action for conspiracy would be ruled out under the now well-established principle of English (as well as Scots) law laid down in a series of cases in this House spanning 50 years of which it suffices to refer only to Mogul Steamship Co Ltd v McGregor, Gow and Co [1892] AC 25 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435.’

Lord Diplock
[1985] AC 58, [1984] UKHL 7, [1984] 3 WLR 413, [1984] 3 All ER 39
Bailii
England and Wales
Citing:
At First instance – British Airways Board v Laker Airways Limited 1984
Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine . .
Cited – Crofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
Appeal from – British Airways Board v Laker Airways Limited CA 2-Jan-1984
The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .

Cited by:
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Jurisdiction

Leading Case

Updated: 01 November 2021; Ref: scu.195992

Riddick v Thames Board Mills Ltd: CA 1977

An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter conduct. That action was settled on terms that included the withdrawal of the allegations of wrongful arrest and false imprisonment. The plaintiff then brought a second action for damages for defamation ‘flowing from the wrongful manner’ of his dismissal. That action was struck out on the basis that it was in respect of the same matters that had been the subject of the first action. He then brought a third action, again for defamation, acting in person. This was based on an internal report to the defendant’s chief personnel manager, made after his dismissal, which alleged that he had not been up to his job. This had come to the plaintiff’s knowledge as a result of being disclosed in the earlier litigation. The employer objected to that use of the document.
Held: The plaintiff should not have been permitted to make use of the memorandum disclosed in the earlier litigation to found his claim for defamation. It was an abuse of the court process. There was an implied understanding, or undertaking, that documents disclosed in court should not be used for any ulterior or collateral purpose.
Lord Denning MR said: ‘The principle was stated in a work of the highest authority 93 years ago by Bray J., Bray on Discovery, 1st ed. (1885), p.238: ‘A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents public or communicated them to any stranger to the suit: . . nor to use them or copies of them for any collateral object . . If necessary an undertaking to that effect will be made a condition of granting an order: . . ‘
Since that time such an undertaking has always been implied, as Jenkins J. said in Alterskye v. Scott [1948] 1 All E.R. 469, 471. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.’
Stephenson LJ said: ‘There may be cases in which a plaintiff would be justified in bringing an action on a document disclosed in an earlier action. I do not say that it could never be done without abusing the process of the court. But generally speaking it would be an abuse of its process and in the circumstances of this case the plaintiff’s use of this memorandum is an improper use which the court should not countenance.’
Waller LJ said: ‘In my opinion it is highly desirable that there should be no discouragement to full and frank disclosure on discovery. If there be a risk that disclosures may produce new causes of action parties may be deterred from disclosing the document.’

Lord Denning MR, Stephenson LJ
[1977] 3 All ER 677, [1977] 3 WLR 63, [1977] QB 881
England and Wales
Cited by:
Approved – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – McBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.223346

In re E (A Child): CA 19 May 2016

‘Appeal against findings of sexual abuse made against a father and his teenage son in the course of care proceedings relating to that boy and separate care proceedings relating to the three children of a different family. In addition to a detailed challenge to the judge’s analysis of the factual evidence in this particular case, the appeal raises the following more general issues:
a) The approach to determining whether a child witness should be called in the course of family proceedings following the Supreme Court decision in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12; [2010] 1 WLR 701.
b) The weight to be given to defects in both the process and the content of ABE interviews conducted with child victims and witnesses (‘Achieving Best Evidence in Criminal Proceedings’ – Ministry of Justice March 2011).
c) The approach to be taken by those representing a child in family proceedings where that child is himself accused of being the perpetrator of abuse.
d) The basic requirements of due process necessary to meet the Article 6 fair trial rights of such a child during the investigation and any subsequent Family Court proceedings where he or she might properly be regarded as either a perpetrator or a victim or both.’

McFarlane, Glsoer, Macur LJJ
[2016] EWCA Civ 473, [2016] WLR(D) 270, [2016] 4 WLR 105
Bailii, WLRD
England and Wales

Children, Litigation Practice

Updated: 02 November 2021; Ref: scu.564447

PJS v News Group Newspapers Ltd: CA 18 Apr 2016

The claimant celebrity had obtained an injunction restraining the defendant newspaper from publishing details of his extra marital activities. The newspaper appealed, saying that the information had already been printed abroad, and had been widely distributed on the Internet and on social media.
Held: The Court of Appeal set aside the interim injunction. The protected information was in the public domain, and the injunction therefore served no useful purpose and was an unjustified interference with NGN’s own rights under article 10 of the European Convention on Human Rights

Jackson, King, Simon LJJ
[2016] EWCA Civ 393
Bailii, Judiciary
European Convention on Human Rights 10, Human Rights Act 1998 12
England and Wales
Citing:
See Also – PJS v News Group Newspapers Ltd CA 22-Jan-2016
The claimants sought to restrain newspapers from publishing their identities in the context of allegations of sexual misconduct. They now appealed against rejection of their request for an interim injunction.
Held: The appeal succeeded. . .

Cited by:
Appeal from – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights

Updated: 02 November 2021; Ref: scu.562159

Araci v Fallon: CA 4 Jun 2011

The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer Agreement under which the defendant had been paid to ride the claimant’s horses as and when requested, and not to ride any other rival horse instead. The defendant’s evidence had been found ‘verging on fanciful’, but the judge had refused an injunction, saying that damages were an adequate remedy. The claimant appealed.
Held: The grant of such an injunction remained a discretionary remedy, though: ‘Where the defendant is proposing to act in clear breach of a negative covenant, in other words to do something which he has promised not to do, there must be special circumstances (e.g. restraint of trade contrary to public policy) before the court will exercise its discretion to refuse an injunction.’ In this case whilst the court could not assess any possible damages they may be substantial and there was no evidence that the defendant would or would not be able to meet any award. The defendant had special knowledge of the claimant’s intended tactics in the race and the lost prestige was not remediable. An awrd of damages alone may not be adequate.
This was an exceptional case where it would be proper to reverse the discretion exercised by the judge: ‘The defendant voluntarily entered into a contract for substantial reward containing both positive and negative obligations. There is nothing special about the world of racing which entitles the major players to act in flagrant breach of contract. The defendant has promised in the context of a commercial agreement that he will not compete against Native Khan in the Derby this afternoon. In my view, that promise should be enforced.’
Elias LJ said: ‘In a case where the breach of a negative covenant is clear, there is no magic in the fact that the injunction is being sought at an interlocutory stage. All questions of balance of convenience are then immaterial.’

Jackson, Elias LJJ
[2011] EWCA Civ 668
Bailii
England and Wales
Citing:
Cited – Doherty v Allman HL 2-Apr-1878
Two leases were granted of pieces of land with some buildings on them, one granted in 1798 for 999 years, the other granted in 1824 for 988 years. There was no reservation of a power of re-entry for breach of covenant, nor was there any negative . .
Cited – Hampstead and Suburban Properties Ltd v Diomedous ChD 1969
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction . .
Mentioned – Attorney General v Barker CA 1990
A claim was made for an injunction to enforce an express covenant in a contract of employment by a member of the Royal Household by which he undertook (amongst other things) not to publish any information concerning a member of the family which came . .
Cited – Warner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .
Cited – Hadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .

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.

Contract, Litigation Practice

Updated: 02 November 2021; Ref: scu.440444

Cook v Telegraph Media Group Ltd: QBD 29 Mar 2011

The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew that the article was untrue. The defendant sought summary judgment.
Held: It was not possible to say there was no prospect that a jury would find the defendant guity of malice,and therefore that element must be allowed to proceed. Similarly, on justification it was possible that the defence would fail as to the meaning that the claimant had set out to exploit the expenses system, and nor was it yet established whether a Reynolds privilege can apply to a comment.
As to jury trial, the court considered the effect of the CPR on the discretion under 69(3) to order jury trial, and ‘once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.’

Tugendhat J
[2011] EWHC 763 (QB)
Bailii
Senior Courts Act 1981 69, Civil Procedure Rules 1
England and Wales
Citing:
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Turner v Metro-Goldwyn-Mayer Pictures Ltd (MGM) HL 1950
A letter was published which criticised a film critic’s review of the week’s films.
Held: A person (including a corporation) whose character or conduct has been attacked is entitled to answer the attack, and the answer will be protected by . .
Cited – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Cited – Myerson v Smith’s Weekly 1923
(New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
Cited – London Artists Ltd v Littler CA 10-Dec-1968
The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
Cited – Kemsley v Foot CA 14-Dec-1950
Pleading of Fair Comment Defence
The plaintiff newspaper proprietor complained that the defendant had defamed him in a publication ‘The Tribune’ with a headline to an article ‘Lower than Hemsley’ which article otherwise had no connection with the plaintiff. He said it suggested . .
Cited – Kemsley v Foot HL 25-Feb-1952
Fair Comment Crticism of Newspaper Publisher
The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Kemsley’ was defamatory. The defendant pleaded fair comment. The plaintiff appealed. . .
Cited – British Chiropractic Association v Dr Simon Singh CA 1-Apr-2010
The defendant appealed against a ruling that the words in an article – ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’ – were statements of fact, and were not comment.
Cited – Jameel and Another v Wall Street Journal Europe Sprl (No 2) CA 3-Feb-2005
The claimant sought damages for an article published by the defendant, who argued that as a corporation, the claimant corporation needed to show special damage, and also that the publication had qualified privilege.
Held: ‘It is an established . .
Cited – Branson v Bower QBD 15-Jun-2001
Eady J considered that: ‘Mr Price argues that the objective test for fair comment cannot be fulfilled (at any point) if the facts pleaded by the Defendant might take on a different significance when set against other facts not referred to in the . .
Cited – Rothermere v Times Newspapers Ltd CA 1973
The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury.
Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is . .
Cited – Fiddes v Channel Four Television Corporation and Others CA 29-Jun-2010
The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s . .
Cited – Beta Construction Ltd v Channel Four Television Co Ltd CA 1990
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also . .
Cited – Times Newspapers Ltd and others v Armstrong CA 13-Jun-2006
May LJ noted: ‘an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. . .
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .

Cited by:
Applied – Lewis v Commissioner of Police of The Metropolis and Others (Rev 1) QBD 31-Mar-2011
lewis_cpmQBD11
The defendant sought a ruling on the meaning of the words but using section 69(4) of the 1981 Act. The claimant solicitor was acting in complaints as to the unlawful interception of celebrity voicemails by agents of the press. There had been debate . .
Cited – McGrath v Independent Print Ltd QBD 26-Jul-2013
The claimant alleged defamation in an article on the defendant’s web-site discussing a failure of his earlier defamation action. He now sought directions for a jury trial. . .
See Also – Cook v Telegraph Media Group Ltd QBD 9-May-2011
The claimant sought damages in defamation against the defendant newspaper after articles regarding his expenses claims whilst an MP. . .
See Also – Cook v Telegraph Media Group Ltd QBD 16-Jun-2011
Trial of preliminary issues in defamation claim. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 02 November 2021; Ref: scu.431294

Desmond v Bower: CA 7 Jul 2009

Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
Held: Applying O’Brien, and respecting that this was a matter of case management where an appeal court should only intervene with great reluctance, the judge’s decision had been wrong. The defendant had given evidence to say that he did not carry a grudge. The recording was required, and the summons should be issued: ‘the prejudice to Mr Desmond of the admission of a short, taped telephone conversation with him, in circumstances in which the judge will no doubt permit him, (if on reflection he wishes) to return to the witness box and deal with the matter, is small, whereas the risk that, without access to the tape, the jury might reach a false conclusion about the existence of a grudge and the genesis of the article relating to Pentagon is substantial.’

Rix LJ, Wilson LJ
[2009] EWCA Civ 667, Times 04-Aug-2009, [2010] EMLR 5
Bailii
England and Wales
Citing:
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:
See Also – Desmond v Bower CA 20-Jul-2009
interlocutory appeal . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice, Evidence

Updated: 02 November 2021; Ref: scu.361448

Ameyaw v McGoldrick and Others: QBD 6 Jul 2020

Recusal Refused – former Pupil Master

Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where one of the parties is represented by a barrister who was once the fee-paid judge’s pupil supervisor or where the fee-paid judge and the barrister representing one of the parties were members of the same chambers, and the barrister was the more senior. It is all the more untenable to suggest there is an appearance of bias in this case where (a) I am a full-time Judge, (b) I am no longer a member of the chambers of which Mr P is a member; and (c) I am more senior than Mr P and I was his pupil supervisor, not vice versa.’

Steyn DBE J
[2020] EWHC 1787 (QB)
Bailii
England and Wales
Citing:
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Howell and others v Lees Millais and others CA 4-Jul-2007
Appeal against refusal of judge to recuse himself after acrimonuious correspondence between judge and other members of the claimant’s solicitors firm who now asserted apparent bias. . .
Cited – Siddiqui v University of Oxford QBD 2016
Kerr J refused an application for him to recuse himself based inter alia on the fact that counsel for the Defendant before him was a member of his former chambers: ‘It is true that I was a member of the same chambers of Mr Milford until June 2015. . .
Cited – Watts v Watts CA 21-Dec-2015
The barrister for one of the parties was junior Counsel to the fee-paid judge in another case, which they had been working on together for the past year. The opponent appealed a refusal of the judge to recuse herself.
Held: The appeal . .

Cited by:
See Also – Ameyaw v McGoldrick and Others QBD 9-Jul-2020
Application for oral hearing of certain issues. . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Litigation Practice

Updated: 01 November 2021; Ref: scu.652406

Park v Cho and Others: ChD 24 Jan 2014

The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting of the stay after the claimant had received permission.
Held: The objection failed. Authority could be granted retrospectively. The practice of granting retrospective leave for proceedings has long been well-established in English cases. The phrase ‘the taking of proceedings’ would make little sense unless interpreted to include ‘initiating or commening proceedings’. ‘Taking of proceedings’ was possible in the course of an action which had already been commenced.
The Commission did not itself consider that it could grant retrospective consent, but the order made by the Charity Commission was a permissible order, authorising the taking of a step in the existing proceedings, albeit that the order did not authorise the proceedings from their inception.

Jeremy Cousins QC
[2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27
Bailii, WLRD
Charities Act 2011 115
England and Wales
Citing:
Cited – In re Saunders (A Bankrupt) ChD 1997
Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had . .
Cited – Rendall v Blair 1890
Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed . .
Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Cited – Simpson v Eggington 9-Feb-1855
It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The . .
Cited – The Attorney-General, At The Relation Of Joseph Greenhill v Sidney Sussex College, Cambridge; Trinity College, Oxford, And Frederick Greenhill 4-May-1865
Lord Chelmsford LC said, of an argument by that college that the leave of the Charity Commissioners ought to have been obtained to the plaintiff’s proceedings but had not been, that: ‘The objection if persisted in must prevail, but in that case [he] . .
Cited – Gray v Raper CCP 1866
The defendants had given promissory notes to a friendly society, which came to be dissolved. An action was brought for recovery of the debts, but without the necessary permission first.
Held: The failure was not one to be taken advantage of in . .
Cited – Glen v Gregg 1882
. .
Cited – In re Wanser Ltd 1891
A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that . .
Cited – Regina v Lord Mayor of London; Ex parte Boaler QBD 1893
Boaler had brought unsuccessful proceedings in the Lord Mayor’s Court against a company, and was ordered to pay its costs. When he failed to pay them, an order of commitment was made against him. He applied for certiorari, alleging, inter alia, that . .
Cited – In re Hutton (A Bankrupt), Mediterranean Machine Operations Ltd v Haigh and Others ChD 1969
Proceedings were instituted against a trustee in bankruptcy after he had seized an aircraft claimed by the plaintiff.
Held: There is no right to sue an officer of the court in another court, without the sanction of the court, which appointed . .
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 – In re Ford’s Charity 6-Jul-1855
A new scheme for the development of a new school which had not previously been considered by the court did not amount to a matter pending, even though another scheme in respect of the same charity funds had been so considered. He held that it was . .

Lists of cited by and citing cases may be incomplete.

Charity, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.520824

The Rugby Football Union v Consolidated Information Services Ltd: SC 21 Nov 2012

The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in breach of this condition. The Court considered whether it was appropriate to protect the identities of those who had advertised tickets for sale. The Union, appealing, argued that in assessing whether the order is proportionate, the court should evaluate the impact that the disclosure of the information will have on the individual concerned against the value to the applicant of the information that can be obtained about that particular individual.
Held: The Union’s appeal failed, and disclosure was not ordered. The request was disproportionate as between the applicants and the intended targets.
As to the argument that in accepting the respondent’s web-site terms, they had consented to such disclosure: ‘such consent as may have been given by acceptance of the terms and conditions did not include an agreement to disclose personal data other than when it was proportionate to do so. Viagogo could not be required by law to disclose personal data other than when it was concluded that it was proportionate to require it to do so. A court order requiring its disclosure could not be made without the necessary underpinning of proportionality.’
Lord Kerr of Tonaghmore discussed the Charter: ‘The Charter was given direct effect by the adoption of the Lisbon Treaty in December 2009 and the consequential changes to the founding treaties of the EU which then occurred. Article 6(1) of the Treaty on European Union (TEU) now provides:
‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.’
Although the Charter thus has direct effect in national law, it only binds member states when they are implementing EU law – article 51(1). But the rubric, ‘implementing EU law’ is to be interpreted broadly and, in effect, means whenever a member state is acting ‘within the material scope of EU law’ . . Moreover, article 6(1) of TEU requires that the Charter must be interpreted with ‘due regard’ to the explanations that it contains.’

Lord Phillips, Lady Hale, Lord Kerr, Lord Clarke, Lord Reed
[2012] UKSC 55, [2012] 1 WLR 3333, [2012] WLR(D) 342, UKSC 2012/0030, [2013] 1 CMLR 56, [2013] HRLR 8, [2013] 1 All ER 928
Bailii, Bailii Summary, SC Sumary, SC, WLRD
Directive 95/46/EC 1(1) 6 7, Data Protection Act 1998, Charter of Fundamental Rights of the European Union
England and Wales
Citing:
At First Instance – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Appeal from – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Koo Golden East Mongolia v Bank of Nova Scotia and others CA 19-Dec-2007
When making an order for the production of documents by a third party to an action, Sir Anthony Clarke MR said that it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy. . .
Cited – Totalise Plc v Motley Fool Ltd and Another QBD 15-Mar-2001
A web site operator who declined responsibility for the moderation of a chat room on the site, but did take steps to remove a poster making defamatory remarks, could not rely upon the Act to resist disclosure of the identity of the author. The Act . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners HL 1974
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Cited – The President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Clift v Clarke QBD 18-Feb-2011
The claimant sought disclosure of identities of posters to the defendant’s web-site.
Held: ‘In my view, the postings are clearly one or two-liners, in effect posted anonymously by random members of the public who do not purport, either by . .
Cited – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 18-Jul-2007
The provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Bonnier Audio AB v Perfect Communication Sweden AB ECJ 19-Apr-2012
ECJ The applicants, publishers with exclusive rights to reproduce etc, certain audio books, claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by . .

Cited by:
Cited – Davis and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others Admn 17-Jul-2015
The applicants said that section 1 of the 2014 Act was unlawful in that it went against decisions of the European Court.
Held: Section 1 was indeed inconsistent with European Union Law. Section 1, of the Act should be disapplied: (1) insofar . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – Mircom International Content Management and Consulting Ltd and Others v Virgin Media Ltd and Another ChD 16-Jul-2019
The claimants, producers of pornographic films, sought disclosure by the defendant internet service provider of certain internet protocol addresses, wishing to pursue those it said had wrongfully downloaded their films. The court was asked first . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Information, Contract, Human Rights, European

Leading Case

Updated: 01 November 2021; Ref: scu.465937

The Rugby Football Union v Viagogo Ltd: QBD 30 Mar 2011

The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the sellers and the tickets advertised.
Held: The application succeeded. The order was necessary. The RFU had a proper requirement and need. The defendant had given no effective right of privacy to its customers, and the customers should not object to the claimant knowing who had tickets. There was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion

Tugendhat J
[2011] EWHC 764 (QB)
Bailii
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Unilever Plc v Gillette (UK) Limited CA 1989
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – The President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
Cited – United Company Rusal Plc and Others v HSBC Bank Plc and Others QBD 1-Mar-2011
The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations . .
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department CA 23-Jul-1997
The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes . .
Cited – United Company Rusal Plc and Others v HSBC Bank Plc and Others QBD 1-Mar-2011
The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations . .

Cited by:
Appeal from – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .
At First Instance – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 01 November 2021; Ref: scu.431656

Symbian Ltd v Comptroller General of Patents: CA 8 Oct 2008

No Pattern Established to Patent Computer Systems

The Comptroller appealed against the decision in Chancery to grant a patent to the clamant for an invention which the comptroller said should have been excluded from protection under section 1(2) as a computer program. It was argued that the UK was taking a different approach to the European Patent Office, and that the Court of Appeal should depart from its earlier decisions on this topic.
Held: The line of decisions in Europe was not yet so consistent as to require that English law change to accord with it. The court urged a dialogue with the European Patent Office to reconcile the differences. The issue as to what constituted a computer program ‘is inherently problematic, and inevitably will lead to a degree of inconsistency and uncertainty. ‘

Lord Neuberger of Abbotsbury
[2008] EWCA Civ 1066, Times 28-Oct-2008, [2009] RPC 1
Bailii
Patents Act 1977 1(2)
England and Wales
Citing:
Cited – Gales Application ChD 1990
Claim to Patent for Computer Chip was Valid
The applicant had implemented an algorithm for solving square roots problems by embodying it within a computer chip. He appealed against refusal of the patent by the Patents Office.
Held: The appeal succeeded.
Aldous J said: ‘I have come . .
Cited – In Re Patent Application No 9204959 by Fujitsu Ltd CA 14-Mar-1997
A computer program modelling a crystal structure is not patentable; it was not a hardware function, and software is not capable of protection under Patents law. Aldous LJ repeated his concern at the so called ‘technical contribution test’ for . .
Cited – Aerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
Cited – Actavis UK Ltd v Merck and Co Inc CA 21-May-2008
Appeal against finding that patent invalid.
Held: The Court of Appeal is free to depart (but not bound to depart) from one of its previous decisions on a point in the field of patent law if satisfied that the Board have formed a settled view . .
Cited – Duns Licensing Associates EPB 15-Nov-2006
Inherent in the concept of ‘an invention’ in the EPC was ‘any subject matter or activity having technical character’ and that a contribution could be patentable ‘even if it was related to the items listed in [art. 52(2)] since these items were only . .
Cited – Actavis UK Ltd v Janssen Pharmaceutica Nv PatC 30-Jun-2008
. .
Cited – Windsurfing International Inc v Tabur Marine (Great Britain) Limited CA 1985
Testing Validity of a Patent
A patent was challenged where the windsurf board had been shown as a primitive prototype to have been built and used in public by a twelve year old boy. The court set out the four steps required to be taken when ascertaining the validity of a . .
Cited – Pozzoli Spa v BDMO Sa and Another CA 22-Jun-2007
The patentee had invented a method for storing CDs. The patentee sought leave to appeal a finding that its patent was invalid, and if successful, to appeal a finding that the defendant’s apparatus was not infringing.
Held: The application for . .
Cited – Improver Corporation v Remington Consumer Products Ltd ChD 1989
Protocol Tests For Onbviousness Set Out
The invention was based upon the discovery that an arcuate rod with slits, when rotated at high speed, would take the hair off the skin by means of the opening and closing of the slits. The claim was to a rod in the form of an ‘helical spring’ but . .
Cited – Gameaccount Ltd EPB 29-Jun-2007
‘[A]n invention which as a whole falls outside the exclusion zone of [art 52(2)] (i.e. is technical in character) cannot rely on excluded subject matter alone, even if it is novel and non-obvious (in the colloquial sense . .), for it to be . .
Cited – Astron Clinica Ltd and others v The Comptroller General of Patents, Designs and Trade Marks PatC 25-Jan-2008
There is no reason in principle to exclude claims to computer programs from patentability under Art.52 where the claims to a method performed by running a suitably programmed computer or to a computer program to carry out the method are allowable. . .
Cited – CFPH LLC, Patent Applications By PatC 21-Jul-2005
In the context of deciding as to the patentability the use of the description ‘technical’ was ‘a useful servant but a dangerous master’. Peter Prescott QC discussed the importance of being clear as to the meaning of an ‘invention’ saying: ‘does it . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Vicom/Computer-related invention EPOBA 1987
The claimant sought a patent claiming a method for the digital processing of images and an associated apparatus (which might be a computer) for implementing the method.
Held: The claims were not to a computer program as such: ‘Generally . .
Cited – Merrell Dow Pharmaceuticals Inc and Another v H N Norton and Co Ltd; Same v Penn Etc HL 26-Oct-1995
A patent for a substance which had been produced naturally before the application of the process was invalid. The patent was invalidated after the discovery that the effect was produced naturally from an acid metabolite. Patent infringement does not . .
Cited – Actavis UK Ltd v Merck and Co Inc CA 21-May-2008
Appeal against finding that patent invalid.
Held: The Court of Appeal is free to depart (but not bound to depart) from one of its previous decisions on a point in the field of patent law if satisfied that the Board have formed a settled view . .
Cited – Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and others HL 9-Jul-2008
The respondents had applied for and obtained an order to revoke the appellant’s patent of a stent for obvousness. Though the parties had settled, the public law element required the intervention of the Comptroller General. The House was asked about . .
At IPO – Symbian Ltd (Patent) IPO 30-Jul-2007
IPO The application relates to a method of operating a computing device to access data held in a dynamic link library (DLL) which has two parts, each part containing a number of functions. In operation, an . .
Appeal from – Symbian Ltd (Patent) IPO 30-Jul-2007
IPO The application relates to a method of operating a computing device to access data held in a dynamic link library (DLL) which has two parts, each part containing a number of functions. In operation, an . .

Cited by:
Cited – Lantana Ltd v The Comptroller General of Patents, Design and Trade Marks CA 13-Nov-2014
The inventor company appealed against rejection of its application for a patent for a computer program.
Held: The appeal failed: ‘on the facts found by the Hearing Officer, the invention is no more than the computerisation of a process which . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice, European

Leading Case

Updated: 01 November 2021; Ref: scu.276773

Accident Exchange Ltd v Autofocus Ltd: QBD 16 Dec 2009

The claimant wished to allege that in earlier proceedings, the defendant’s employees had systematically given false evidence. The defendant now sought the strike out of the claim on the basis of witness immunity.
Held: The application failed. The claim was based on the use of allegedly fraudulent exhibits, and the case of Darker had restricted the scope of witness immunity. The exhibits were not part and parcel of the testimony attracting immunity.

Mackie QC
[2009] EWHC 3304 (QB)
Bailii
England and Wales
Citing:
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.393031

Thompson v Starr and Others: QBD 10 Jul 2013

Claiming adjournment for illness but competing at Kendo on day

[2013] EWHC 1972 (QB)
Bailii
England and Wales

Litigation Practice

Updated: 01 November 2021; Ref: scu.512290

Watt (or Thomas) v Thomas: HL 1947

When Scots Appellate Court may set decision aside

The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.’
. . And: ‘So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.
. .If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge.’
Lord Thankerton sad: ‘It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves;’
Viscount Simon said: ‘If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight.’
Viscount Simon said: ‘an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given’.

MacMillan L, Lord Thankerton, Viscount Simon
[1947] AC 484, 1947 SC (HL) 45
Scotland
Citing:
Approved – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Approved – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .

Cited by:
Cited – Chow Yee Wah v Choo Ah Pat HL 1978
When considering ‘the printed evidence’ the Court in Watt referred to a transcript of the evidence only. The disadvantage under which an appellate court labours in weighing evidence is even greater where all it has before it is the judge’s notes of . .
Cited – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Cited – Franklyn Dailey v Harriet Dailey PC 2-Oct-2003
PC (British Virgin Islands) The husband and wife had developed a business together. Transfers between the parties had taken place and there were suspicions about misappropriation of money.
Held: The . .
Cited – Dingley v Chief Constable of Strathclyde Police HL 11-May-2000
The officer had been injured in an accident in a police van. He developed multiple sclerosis only a short time afterwards. The respondent denied that the accident caused the MS.
Held: There is no proof of what causes MS, but it was common . .
Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Harracksingh v The Attorney General of Trinidad and Tobago and PC Neville Adams PC 15-Jan-2004
(Trinidad and Tobago) The appellant had succeeded in a claim for damages against the police for false imprisonment and assault. He now appealed a reversal of that decision. The judge had been doubtful as to the value of the police evidence. The . .
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Chapman v London Borough of Barking and Dagenham CA 13-Jul-1998
The plaintiff was severely injured when a branch was broken from a tree in a high wind, and fell onto the van he was driving. The land-owner appealed a finding of liability in nuisance.
Held: The local authority were also the highway . .
Adopted – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Cited – Forsdike v Forsdike CA 21-Feb-1997
The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of . .
Cited – Kwasi Bekoe v Horace Broomes PC 31-Oct-2005
PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the . .
Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Hamilton and others v Allied Domecq Plc (Scotland) HL 11-Jul-2007
The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it . .
Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

Administrative, Litigation Practice, Family

Leading Case

Updated: 01 November 2021; Ref: scu.186349

Walker v Wilsher: CA 1889

Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters and the interview were without prejudice, and the question is whether under such circumstances they could be considered in order to determine whether there was good cause or not for depriving the plaintiff of costs. It is, I think, a good rule to say that nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed. I am, therefore, of opinion that the learned judge should not have taken these matters into consideration.’
Lindley LJ said: ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given. Supposing that a letter is written without prejudice then, according both to authority and to good sense, the answer also must be treated as made without prejudice.’
and ‘No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer was dealt with – the material matters, that is to say, of the letters – must not be looked at without consent.’
Bowen LJ said: ‘In my opinion it would be a bad thing and lead to serious consequences if the Courts allowed the action of litigants, on letters written to them ‘without prejudice’, to be given in evidence against them or to be used as material for depriving them of costs. It is most important that the door should not be shut against compromises, as would certainly be the case if letters written ‘without prejudice’ and suggesting methods of compromise were liable to be read when a question of costs arose.’ and ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

Bowen LJ, Lord Esher MR, Lindley LJ
(1889) 23 QBD 335
England and Wales
Cited by:
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Applied – Stotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.199274

Al Rawi and Others v The Security Service and Others: SC 13 Jul 2011

The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the public under a closed material procedure. It argued that whilst the need for a fair trial was absolute, a closed procedure may be occasionally necessary in order to achieve a fair result, and that the Public Interest Immunity procedures were not suitable in this situation.
Held: The Security Service’s appeal failed (Mance, Hale, Clarke LL dissenting). There is no power at common law to replace public interest immunity, where a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. Such a fundamental change undermining a claimant’s rights to an open and fair hearing could only be introduced if at all by Parliament: ‘The common law principles . . are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved.’
Lord Dyson said: ‘no form of closed material procedure can properly be described as a development of the common law of PII, although there is no objection to the use of special advocates to enhance the PII process (see para 49 below). In many ways, a closed procedure is the very antithesis of a PII procedure. They are fundamentally different from each other. The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side’s special advocate and the court.’
Orse Al-Rawi and Others v The Security Service and Others (JUSTICE intervening)

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson
[2011] UKSC 34, UKSC 2010/0107, [2011] UKHRR 931, [2012] 1 All ER 1, [2011] 3 WLR 388, [2012] 1 AC 531
Bailii, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At First Instance – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Appeal from – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Regina v Lee 1998
(High Court of Australia) The court considered the operation of the hearsay rule, saying: ‘The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of Court (a previous representation). . .
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Kanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
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 – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Duke of Dorset v Serjeant Girdler 1720
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the . .
Cited – Connelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
Cited – Secretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .
Cited – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
Cited – Carnduff v Inspector Rock and Chief Constable West Midlands Police CA 11-May-2001
The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information . .
Cited – A and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
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 Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd CA 1916
The court refused to order the production in litigation of a copy of a letter written by the defendants to their agents in Persia containing confidential information from the Admiralty as to the progress of the campaign in Persia during the First . .
Cited – Andre Paul Terence Ambard v The Attorney General of Trinidad and Tobago PC 2-Mar-1936
(Trinidad and Tobago) Lord Atkin said: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’ . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Department of Economic Policy and Development of City of Moscow and Another v Bankers Trust Company and Another CA 25-Mar-2004
The word ‘private’ in rule 39.2 means the same as ‘secret’. Lord Justice Mance said: ‘It may be equated with the old ‘in camera’ procedure, rather than the old ‘in chambers’ procedure.’ Privacy and confidentiality are features long assumed to be . .
Cited – In Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Cited – Regina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Balfour v Foreign and Commonwealth Office CA 10-Dec-1993
A judge may choose not to inspect the documents behind a Public Interest immunity certificate if that certificate had been given for reasons of National Security. The court must always be vigilant to ensure that public interest immunity of whatever . .
Cited – Air Canada v Secretary of State for Trade HL 1983
The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to . .
Cited – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .

Cited by:
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
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 – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – British Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another Admn 21-Dec-2011
The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support . .
Cited – British Sky Broadcasting Ltd, Regina (on The Application of) v The Commissioner of Police of The Metropolis SC 12-Mar-2014
The court was asked as to the powers of Magistrates hearing an application for a search warrant to receive excluded or special procedure material which had not been disclosed to the respondent. The court had overturned an order made by the district . .
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 – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
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 – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 01 November 2021; Ref: scu.441627

Al Rawi and Others v The Security Service and Others: CA 4 May 2010

Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory authority, could order a closed material procedure for part or all of the trial of a civil claim for damages in tort and breach of statutory duty.
Held: The appeal succeeded. The court had no such power in an ordinary claim for damages. To allow the use of such procedures in ordinary civil trials would fundamentally undermine the common law. It was not permitted by the Civil Procedure Rules, while also being disproportionately expensive. The CPR made exceptions in limited areas, but not generally.
Lord Neuberger MR said: ‘The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR, (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.’

Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ
[2010] EWCA Civ 482, [2010] 4 All ER 559, [2010] UKHRR 728, [2010] CP Rep 37, [2010] NPC 51, [2010] 3 WLR 1069
Bailii, Times
Civil Procedure Rules
England and Wales
Citing:
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Appeal From – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Duke of Dorset v Serjeant Girdler 1720
A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the . .
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 – 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 – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Home Office v Tariq CA 4-May-2010
The claimant began proceedings against his employer, the Immigration Service after his security clearance was withdrawn. He complained that the respondent had been allowed by the Tribunal to present evidence he was not himself allowed to see and . .
Cited – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
Cited – Kanda v Government of the Federation of Malaya PC 2-Apr-1962
A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the . .
Cited – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
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 – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Cited – In Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Cited – Tombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9) CA 17-Dec-2008
The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – A and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
Cited – Malik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
Cited – Secretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .

Cited by:
Cited – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Appeal from – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – British Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another Admn 21-Dec-2011
The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.409218

Hirachand Punamchand v Temple: CA 1911

The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were instructed to offer Rs1500 (a sum less than the debt) in full settlement. They enclosed a draft for that amount and sought that promissory notes be handed over against payment of that sum. The plaintiffs cashed and retained the proceeds of the draft and afterwards brought an action against the debtor for the balance of the debt.
Held: The creditor’s action against the debtor failed. A court will not support an action whose effect is circuitous, to recover damages awarded against that party in another action. Where one party releases another from liability, a third party will not later be allowed to sue on the same cause. Where a cheque for a smaller sum than the amount due is drawn by a person other than the debtor and delivered in satisfaction of his debt, it is clear that the debt is discharged if the cheque be accepted on that basis and duly paid.
Fletcher Moulton LJ said: ‘These being the facts, we have to consider how they affect the debt on the note in point of law. I am of opinion that by that transaction between the plaintiffs and Sir Richard Temple the debt on the promissory note became extinct. I agree with the view expressed by Willes J. in Cook v Lister. The effect of such an agreement between a creditor and a third party with regard to the debt is to render it impossible for the creditor afterwards to sue the debtor for it. The way in which this is worked out in law may be that it would be an abuse of the process of the Court to allow the creditor under such circumstances to sue, or it may be, and I prefer that view, that there is an extinction of the debt; but, whichever way it is put, it comes to the same thing, namely that, after acceptance by the creditor of a sum offered by a third party in settlement of the claim against the debtor, the creditor cannot maintain an action for the balance.
That being my view, namely, that either the debt is extinguished, or that the Court will not allow the creditor to assert his claim, I will only say a few words upon . . the decision in Foakes v. Beer [in the Library], the old doctrine that a debtor cannot discharge himself from his debt by payment of an amount smaller than that of the debt was recognized by the House of Lords as law of such old standing that it could not be challenged … But in the present case we are dealing with the question of the effect of money paid by a third person. In such a case there is no difference between payment of the total amount and payment of a portion of it only, so long as it is paid in settlement of the debt. If a third person steps in and gives a consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that, upon the acceptance of that money by the plaintiffs with full knowledge of the terms on which it was offered, the debt was absolutely extinguished.
Vaughan Williams LJ thought that prima facie ‘an accord and satisfaction must be by virtue of an agreement made between a person who is under an obligation to another person, which he ought to have and has not performed, and that other person.’ Since the draft for Rs1500 had been sent by the father and retained and cashed by the Plaintiffs, the Court should conclude that they had agreed to accept it on the terms upon which it was sent. None of the plaintiffs were called as witnesses and no evidence was given to negative the presumption which arose from their keeping the draft that the plaintiffs had agreed to take it on the terms upon which it was sent. He considered what defence, if any, could be pleaded by the defendant (the debtor) on this basis, finding that, in the hands of the plaintiffs, the negotiable instrument on which they sued had ceased to be a negotiable instrument. Alternatively, from the moment the draft was cashed by the plaintiffs, a trust was created as between the father and the moneylenders in favour of the former so that any money the moneylenders might receive on the promissory note would be held in trust for the father.

Fletcher Moulton LJ, Vaughan Williams LJ
[1911] 2 KB 11, [1911] 2 KB 330
England and Wales
Citing:
Cited – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In . .
Cited – Cook And Another v Lister 19-Jan-1863
Three parties including the defendant had drawn bills against each other, which bills came to the plaintiff as bona fide holder for value indorsee. Various sums had been paid on account, and the plaintiff sued the defendant but giving him credit . .

Cited by:
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – South West Trains Ltd v Wightman and Others ChD 14-Jan-1998
The trades’ union had agreed with the employer that what had been irregular and non-pensionable payments made to employees would, in future, be paid regularly, but that only certain parts of the payments become pensionable. The employer now sought . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – D and C Builders Ltd v Rees CA 1966
The plaintiff builders had been chasing payment of their undisputed invoice. Knowing that the builders were in financial difficulties, the defendant offered rather less, saying that if it was not accepted, she would pay nothing. She made the payment . .
Cited – Morris v Wentworth-Stanley CA 4-Sep-1998
Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and . .
Cited – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
Cited – Stour Valley Builders (a Firm) v Stuart and Another CA 21-Dec-1992
The plaintiff builders had invoiced and pursued a revised account of andpound;10,163 after the defendants had disputed a number of items. The defendants ultimately offered a cheque in the sum of andpound;8,471 in full and final settlement of all . .

Lists of cited by and citing cases may be incomplete.

Contract, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.186670

Ropaigealach v Barclays Bank plc: CA 6 Jan 1999

The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank should have taken possession only after court proceedings.
Held: A lender taking possession of a dwelling house under a mortgage without recourse first to court action, was not subject to the restrictions on suspension of possession for those who did apply to court. The statute could not be extended to imply such limits. The court considered the authorities at length. The mortgagee’s right to possession may be exercised out of court provided that the taking of possession does not involve a contravention of the criminal law under section 6 of the Criminal Law Act 1977.
Chadwick LJ said: ‘I find it impossible to be satisfied that Parliament must have intended, when enacting section 36 of the Act of 1970, that the mortgagee’s common law right to take possession by virtue of his estate should only be exercisable with the assistance of the court. In my view, the only conclusion as to Parliamentary intention that this Court can properly reach is that which can be derived from the circumstances in which the section was enacted, the statutory context in which it appears and the language which was used. ‘ The section in the 1970 Act was intended only to correct the problem identified in Caunt.

Henry, Chadwick, Clarke LJJ
Times 06-Jan-1999, Gazette 10-Feb-1999, [1998] EWCA Civ 1960, [2000] QB 263, [1999] 4 All ER 235
Bailii
Administration of Justice Act 1970, Administration of Justice Act 1973 8, Criminal Law Act 1977
England and Wales
Citing:
Criticised – Remon v City of London Real Property Co Ltd CA 1921
The court was asked whether the plaintiff, a tenant of rooms to which (once enacted) the Act of 1920 applied and who had been excluded from possession by the landlord’s re-entry on the day that the Act came into force following service of a notice . .
Criticised – Cruise v Terrell CA 1922
The plaintiffs stayed at weekends at a cottage let for a fixed term of one year. The contractual term ended on 25 March 1921 and was not renewed. On 7 April, in the absence of the plaintiffs, the defendant sent the local blacksmith to the cottage, . .
Cited – Lavender v Betts 1942
The landlord, served a notice to quit, and obtained entry to the property without force and removed the doors and windows so that it could no longer be used as a dwelling. The plaintiff brought an action for trespass.
Held: After referring to . .
Leave to appeal – Ropaigealach v Barclays Bank plc (1) CA 11-Dec-1997
Application for leave to appeal on issue of whether ‘by necessary implication, the effect of section 36 of the Administration of Justice Act is that a mortgagee must first obtain the leave of the court before proceeding to enforce its right to . .
See Also – Ropaigealach and Another v Cheltenham and Gloucester Building Society CA 20-Mar-1997
The applicants sought leave to appeal against a possession order made for arrears under their mortgage. A possession order had been suspended on an arrangement as to payment. The way the society calculated its payments meant that the arrears . .
Cited – Western Bank Ltd v Schindler CA 1977
The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could . .
Cited – Birmingham Citizens Permanent Building Society v Caunt 1962
The court considered whether there it had jurisdiction to refuse to order possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable.
Held: The court made an . .
Cited – Fourmaids Ltd v Dudley Marshall (Properties) Ltd 1957
A necessary consequence of the legal foundation of a mortgage is that the court may not to refuse, or to suspend, an order for possession sought by a mortgagee who was otherwise entitled to enter by virtue of his estate. . .
Cited – Hemmings v The Stoke Poges Golf Club Limited CA 1920
The defendant landlord had entered the demised property, in which the plaintiff and his wife were living, and removed them and their furniture, using no more force than was reasonably necessary to do so. The landlord had an immediate right to . .
Cited – Cheltenham and Gloucester Building Society v Krausz CA 22-Oct-1996
The County court may not suspend a possession order pending an application to the High Court for an order for sale. The court considered the protection given by s15(1) of the 1970 Act, and found the protection to be limited, but nevertheless of . .
Cited – National and Provincial Building Society v Ahmed CA 1995
A mortgagor’s equity of redemption is extinguished when the mortgagee, in the exercise of his power of sale, enters into a contract of sale of the mortgaged property.
Millett LJ said: ‘The purpose of making an order under section 36 of the . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Bank of Scotland v Grimes CA 1986
The court considered the combined effect of both sections. Griffiths LJ said: ‘It is the intention of both sections to give a measure of relief to those people who find themselves in temporary financial difficulties, unable to meet their commitments . .

Cited by:
Cited – Horsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
Cited – Barlcays Bank Plc v Alcorn CA 17-May-2002
Renewed application for leave to appeal. . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
coop_phillipsChD1408
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .

Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 01 November 2021; Ref: scu.88861

Shepherd Construction Ltd v Berners (BVI) Ltd and Another: TCC 25 Mar 2010

The defendants sought a release from an asset freezing order, saying that there was no good reason to anticipate any dissipation of assets. An action between the parties had been settled on terms, but the defendant had not met payments. The defendant objected to the admission of certain correspondence saying that it had been without prejudice.
Held: The application failed, and the order should continue.
The correspondence was not without prejudice: ‘The communications, in which payment of the agreed and overdue sums was repeatedly promised, were not offers; neither were they made in the course of negotiations for settlement. There was nothing to settle. They are certainly not being relied on by the claimant as an admission of liability, since there already was a full admission of liability, both by way of the Tomlin order and as a result of the subsequent judgment. These communications were being relied on by the claimant because they demonstrated the ongoing failure on the part of these defendants to pay the sums otherwise due, despite promises to the contrary. In those circumstances, it seems to me that these communications are not ‘without prejudice’ and are properly before the court.’
The history of repeated and broken promises was sufficient to justify a finding that there was a risk of dissipation. The defendant companies fell foul of the criteria set out in Iambic.
The order relating to the second defendant was relaxed but not removed.

Coulson J
[2010] EWHC 763 (TCC)
Bailii
England and Wales
Citing:
Cited – Commissioners of Customs and Excise v Anchor Foods Ltd (No 2) ChD 24-Mar-1999
The claimant intended to seek recovery of a very substantial sum from the defendant. On learning of the defendant’s intention to sell its assets, it sought an order freezing them.
Held: The court has the discretion to order a freezing of a . .
Applied – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Ninemia Maritime Corporation v Trave Schiffahrtsgellschaft MbH 1983
A claimant seeking an asset freezing order needs to identify ‘solid evidence of dissipation’. . .
See also – Chorus Group v Berner (BVI) Ltd and Another TCC 1-Nov-2006
Application to continue a freezing injunction.
Held: The order should continue. The defendant companies were registered in countries where enforcement would be more difficult, one of the defendants was a single purpose vehicle,and there was . .
Applied – O’Regan v Iambic Productions 1989
The court set out a series of elements to be taken into account when making a Mareva asset freezing order: ‘1. The nature of the assets and the ease with which they can be dissipated.
2. The nature and financial standing of the defendant . .
Cited – The Niedersachsen ChD 1983
In order to obtain, or to enlarge a freezing order, the applicant must show that in considering the evidence as a whole he has, at a minimum, a ‘good arguable case’, and also the existence of a real risk of dissipation or secretion of assets. . .
Cited – Linsen International Ltd and Others v Humpuss Sea Transport Pte Ltd and Another ComC 19-Feb-2010
The net book value of a company’s assets is not the appropriate figure for the court to consider when considering whether or not there are assets sufficient to meet a potential claim. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.412286

Smith v Critchfield: CA 24 Apr 1885

Protection of Sherriff in Execution Against Goods

The court considered when relief should be granted to the Sherriff issuing executing against a complaint by the debtor. Brett MR said: ‘It seems to me that the sheriff is entitled to protection in respect of the whole of the act which through error he has wrongfully done under the writ, that is, in respect of his having entered the house and seized the goods. What do the authorities say? In the case of Winter v Bartholomew 11 Ex 704; 25 LJ (Ex) 62 it is said that the sheriff may be protected in such a case as this in respect both of the trespass to the land and of that to the goods where no real grievance has been sustained by the claimant. It is obvious that that cannot mean where there is no legal wrong, because by the hypothesis a tortious act must have been committed. It is clear, therefore, that by ‘no real grievance’ is meant no substantial grievance beyond the mere entry and seizure of the goods, such as might exist if the sheriff’s officer were guilty of insolent or oppressive conduct in excess of his duty, and not justified by the writ. The consequences of the contention for the claimant would be absurd. The sheriff cannot seize the goods without entering, and in so doing he is only doing what is absolutely necessary for the purpose of seizing the goods; but it is contended that, though in respect of the seizure he may be protected, in respect of the entry he cannot be protected. It would follow that in every case of this kind, except where he happened to seize the goods in the street, he would be liable to an action of trespass for the entry on the land, and the protection intended to be given to sheriffs by the enactments relating to interpleader would be nugatory, for in every such case there would be an action against the sheriff.’

Lord Brett MR
(1885) 14 QBD 873
Commonlii
England and Wales
Cited by:
Cited – Huntress Search Ltd v Canapeum Ltd and Another QBD 28-May-2010
The court was asked whether it had been correct to refuse relief to the High Court Enforcement Officer in the form of a restraint on an interpleader when this was sought by the applicant.
Held: The test was whether there was evidence entitling . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.416220

Dore and Others (‘Bothca’) v Leicestershire County Council and Others: ChD 15 Jan 2010

The claimants asserted rights as against the council to lease and occupy premises. They sought disclosure of documents prepared for the council by its lawyers who had previously released information which might have been legally provileged. The defendants sought to restrict disclosure of further associated documentation. The claimants argued for a waiver.
Held: The doctrine of waiver should be applied restrictively. In this case the acts of waiver went no further than the actual documents disclosed, and no further disclosure of legally privileged material would be ordered.

Mann J
[2010] EWHC 34 (Ch)
Bailii
England and Wales
Citing:
Applied – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 31-Jul-2006
The court considered what would amount to a waiver of professional legal privilege.
Held: Waiver applied to the ‘transaction’ in question, which might go beyond the actual document (or privileged information) disclosed, and suggested the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.392879

C Plc v P and Attorney General Intervening: CA 22 May 2007

The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the order infringed his right against self-incrimination. He had permitted the search after saying that he did so only on the basis that he would rely upon the privilege if necessary.
Held: His appeal was dismissed. The only issue before the court was whether the civil claimant had a discretion to pass material to the police. ‘no privilege exists in the material itself which is itself ‘real’ and ‘independent’ evidence and is not itself ‘compelled testimony’ from P.’

Longmore LJ, Lawrence Collins LJ, Sir Martin Nourse
[2008] Ch 1, [2007] 3 WLR 437, Times 28-May-2007, [2007] EWCA Civ 493, [2007] 3 All ER 1034
Bailii
Supreme Court Act 1981 72(1)
England and Wales
Citing:
Cited – Rank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – O Ltd v Z ChD 23-Feb-2005
The court was asked whether a search under a court order of a former employee’s computer for materials alleged to have been taken, which discovered material possession of which itself was a crime, infringed the defendant’s rights against self . .
Cited – Anton Piller v Manufacturing Processes Ltd CA 8-Dec-1975
Civil Search Orders possible
The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search . .
Cited – Rex v Warwickshall 1785
The defendant, Jane Warwickshall had confessed to receiving stolen property. Because of that confession, the property was found in her lodgings concealed in the sackings of her bed.
Held: The court refused to admit her confession because it . .
Cited – Regina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Cited – A T and T Istel Ltd v Tully HL 9-Sep-1992
The second plaintff had agreed to supply computer systems to a health authority. New owners of the company discovered allegations that the contract had been operated fraudulently. An order had been obtained for production of documents, but the order . .
Cited – Khan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Attorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .
Cited – Bell Cablemedia Plc etc v Simmonds CA 29-Apr-1997
Any person who is legitimately in premises may refer any material found there to the police. . .
Cited – Regina v Kearns CACD 22-Mar-2002
The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide . .
Cited – Chappell v The United Kingdom ECHR 30-Mar-1989
The plaintiff in civil proceedings had arranged with the police that, if (as happened) the police obtained a search warrant and the claimant obtained an Anton Piller order, they should be executed simultaneously. The court had been informed of the . .
Cited – Tate Access Floors Inc v Boswell 1991
Senior employees were suspected of misappropriating the company’s funds.
Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.252458

Clarkson v Gilbert and others: CA 14 Jun 2000

The court considered the restrictions on lay representatives appearing in court as the related to relatives of the party.
Held: The same objections to granting rights of audience did not apply to a husband who merely wished to assist his wife by representing her in court. Where a close relative was seeking to represent a party the question was whether there was good reason on the facts to grant it, such as ill health or lack of means.
Lord Woolf CJ said: ‘The overriding objective is that the courts should do justice. Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody’s health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.’
He qualified the decision in D v S saying: ‘what I indicated in that case was intended for a situation which was of the sort there described and did not deal with a situation where a husband wished to appear for his wife. It does not matter whether it is said that the position is different in that case or whether it is said that the fact that a husband wishes to appear for somebody who is part of the same family makes it an exceptional situation. It is clear that the objections to someone setting themselves up as an unqualified advocate do not exist in a matter where a husband is merely seeking to assist his wife.’
In this case: ‘I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate.’
Waller LJ said: ‘I agree with my Lord on the proper principles to be applied to an application for a close relative to represent a litigant in person in order to have that right of audience. I also associate myself with my Lord’s remarks in relation to his judgment in D v S (Rights of Audience) [1997] 1 FLR 724; I was a party to that judgment on that occasion. The position of a close relative seeking to exercise a right of audience is very different from the circumstances with which that case was concerned and it is unfortunate that the judge was possibly misled into applying a wrong test, as he did.’
Clarke LJ said: ‘I agree with both judgments. The judge directed himself that the question which he should answer was whether there were exceptional circumstances which justified granting Mr Keter rights of audience under s 27(2)(c) of the Courts and Legal Services Act 1990. I agree with my Lords that that is not the relevant question in a case of this kind. As I see it, the question is simply whether, in all the circumstances of the case, the court should exercise its discretion under s 27(2)(c). The section does not in any way fetter the exercise of the court’s discretion, although the discretion must be exercised in the light of the objective of Part II of the Act set out in s 17(1) and of the general principle set out in s 17(3). In exercising the discretion in any particular case, I agree that the court must have in mind the general principles referred to by Lord Woolf. There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly. For example, in a case where the proposed advocate is holding himself out as providing advocacy services, whether for reward or not, the court will only make an order under s 27(2)(c) in exceptional circumstances: D v S (Rights of Audience) [1997] 1 FLR 724. On the other hand, where the proposed advocate is a member of the litigant’s family, the position is likely to be very different, although, as this case shows, even in such cases the circumstances may vary widely.
There is, in my judgment, no warrant for holding that in such cases an order should only be made in exceptional circumstances. To my mind there is nothing in any of the decisions to which we were referred, including D v S (Rights of Audience) [1997] 1 FLR 724, which requires us so to hold. All will depend upon the circumstances.
It follows that the judge did not ask the correct question and that it is for this court to exercise its own discretion. That discretion should only be exercised for good reason. The question is whether, having regard to the general principles set out by Lord Woolf, there is good reason on the facts of this case to permit Mr Keter to speak on behalf of the claimant at the forthcoming interlocutory applications and at any trial. To put it another way: is it just to permit him to do so?’

Lord Woolf CJ, Aldous and Waller LJJ
[2000] EWCA Civ 3018, [2000] CP Rep 58, [2000] 3 FCR 10, [2000] 2 FLR 839, [2000] Fam Law 808
Bailii
Courts and Legal Services Act 1990 27(2)(c)
England and Wales
Cited by:
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Legal Professions, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.276309

Bocacina Ltd v Boca Cafes Ltd: IPEC 14 Oct 2013

The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant believed that confusion remained, for the claimant to alter his claim to include the new trading style. It was preferable to have the issues dealt with in one set of proceedings.
As to the passing off: ‘at least in a case involving ordinary consumer products or services, the court can form its own view as to whether there is a likelihood of misrepresentation, without the need for there to be actual witness of confusion. Second, the court must consider whether there is a substantial number of people who were or would be deceived by the defendant’s use of the mark, even if there are many, or even most, who would not be deceived.’ In this case the claimant had established a goodwill in the name in the area, and there was a real risk of confusion in the defendant’s trading style. The evidence of confusion was limited, but sufficient and the claim succeeded,

Daniel Alexander QC
[2013] EWHC 3090 (IPEC)
Bailii
England and Wales
Citing:
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Reckitt and Coleman Properties Ltd v Borden Inc HL 1990
The plaintiffs claimed passing off of their ‘Jif Lemon’ trading style.
Held: It is no defence to an allegation of passing off that members of the public would not be misled if they were more literate, careful, perspicacious, wary or prudent. . .
Cited – Wagamama v City Centre Restaurants plc ChD 1995
The plaintiff claimed in both trade mark infringement and passing off. The defendant had opened a restaurant called ‘Rajamama’ or ‘Raja Mama’s’, which was said to amount to infringement of the claimant’s mark WAGAMAMA and also to amount to passing . .
Cited – Neutrogena Coroporation v Golden Ltd ChD 1996
Jacob J discussed the value of survey evidence in passing off cases: ‘Unless one can have some real evidence, tested in cross examination, one cannot really be sure of what was passing through peoples minds. Those cases where surveys have proved to . .
Cited – Neutrogena Coroporation v Golden Ltd CA 1996
The court discussd the ‘substantial proportion of the public’ test applied in passing off. The purpose of this evidence was to provide real evidence from ordinary members of the public wholly untainted by any artificiality. . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Knight v Beyond Properties Pty Ltd and others ChD 24-May-2007
Action for passing off, in which the claimant sought damages and injunctive relief. David Richards J said: ‘A reputation on a relatively small scale will still attract the protection of a claim in passing off, but at some point the reputation may . .
Cited – Nokia Gmbh v IPCom Gmbh and Co Kg CA 20-Jan-2011
The respondent’s two patents at issue had been found invalid, but that if valid, that the appellant’s mobile phones woud have infrige the patents.
Held: Jacob LJ said that ‘It is not normally procedurally fair to subject the other side to . .
Cited – Marks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 01 November 2021; Ref: scu.516494

Americhem Europe Ltd v Rakem Ltd: TCC 13 Jun 2014

americhem_rakemTCC0614

Complaint was made that a costs estimate had been signed not by a solicitor, but by a costs draftsman.
Held: The rules required the estimate to have been signed by a ‘senior legal representative’. A costs draftsman whose involvement in the matter was restricted to the preparation of the costs schedule was not such. He had had no involvement in the conduct and presentation of the case. The schedule was not correctly validated, but, applying the rule from Summit Navigation, the defect was technical and no question of relief from sanctions arose: ‘even in the more robust environment that now obtains, the consequences of refusing relief seem to me to be disproportionate, unjust and therefore contrary to the overriding objective. The proportionate and just response, given that no one has been significantly disadvantaged by the irregularity, is to require it to be remedied at the Defendant’s cost and to compensate the Third Party for the modest cost involved in bringing the matter to the attention of the Court, summarily assessed in the sum of andpound;50.’

Stuart-Smith J
[2014] EWHC 1881 (TCC), [2014] WLR(D) 270
Bailii, WLRD
Civil Procedure Rules 2.3.1
Citing:
Applied – 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 . .
Cited – The Bank of Ireland and Another v Philip Pank Partnership TCC 12-Feb-2014
It is an irregularity for a costs budget to fail to set out the Statement of truth in full. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Legal Professions

Updated: 01 November 2021; Ref: scu.533819

Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others: QBD 16 Jul 2009

The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a search engine might have for a defamation pointed to by its results pages.
Held: As to the search engine: ‘There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.’
The common law defence of innocent dissemination was not abolished by the 1996 Act, though it may have been superceded by it. The interim order should be set aside. The search engine was not a publisher whether before or after notification, and the master had been misled. However, if Google Inc was to be regarded as a publisher of the search ‘snippets’, it was difficult to see how it would not fall within the definition of a commercial publisher. It would, on that hypothesis, not qualify for exemption under s.1(1)(a) and would be counted a ‘publisher’.

Eady J
[2011] 1 WLR 1743, [2009] EWHC 1765 (QB), Times 03-Aug-2009, [2009] EMLR 27
Bailii
Defamation Act 1996, Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No 2013) 17 18 19
England and Wales
Citing:
Cited – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – MRG (Japan) Ltd v Engelhard Metals Japan Ltd ComC 18-Dec-2003
Application to set aside leave to serve out of jurisdiction.There must a ‘good arguable case’ to justify such service. . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others CA 19-Apr-1992
In two issues of ‘The Sunday Times’ newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September were headed . .
Cited – Times Newspapers Ltd (Nos. 1 And 2) v The United Kingdom ECHR 10-Mar-2009
The applicant alleged that the rule under United Kingdom law whereby each time material is downloaded from the Internet a new cause of action in libel proceedings accrued (‘the Internet publication rule’) constituted an unjustifiable and . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Berezovsky v Russian Television and Radio Broadcasting Company and Another QBD 31-Jul-2008
The claimant alleged defamation in a Russian TV programme broadcast on Freeview and available to an watched by Russians in the UK. . .
Cited – Al Amoudi v Brisard and Another QBD 12-May-2006
In the context of allegations of Internet publication there is no presumption that the words published were actually read, and no presumption that a reader who has read one article on a blog will have read all the other articles. The burden is on . .
Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – 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 – Berezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
Cited – Lewis and others v King CA 19-Oct-2004
The claimant sought damages for defamation for an article published on the Internet. The claimant Don King sued in London even though he lived in the US as did the defendants.
Held: A publication via the internet occurred when the material was . .
Cited – MCA Records Inc v Charly Records Ltd and others (No 5) CA 29-Nov-2001
Thre had been an action for copyright and trade mark infringement. The court considered the personal liability of directors of the company for the costs of the action. . .
Cited – Network Telecom (Europe) Ltd v Telephone Systems International Inc QBD 2003
Burton J said: ‘Inasmuch as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and the failure to make such full and fair disclosure shall justify the court in discharging the order, even though . .
Cited – Loutchansky v The Times Newspapers Ltd and Others (Nos 2 to 5) CA 5-Dec-2001
Two actions for defamation were brought by the claimant against the defendant. The publication reported in detail allegations made against the claimant of criminal activities including money-laundering on a vast scale. They admitted the defamatory . .
Cited – Gutnick v Dow Jones 10-Dec-2002
(High Court of Australia) The Court rejected a challenge, in the context of Internet libel, to the applicability of such established principles as that vouchsafed in Duke of Brunswick: ‘It was suggested that the World Wide Web was different from . .
Cited – Emmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .
Cited – McLeod v St Aubyn PC 1899
St. Vincent: The defendant was accused of publishing a statement by handing over an unread copy of a newspaper for return the following day.
Held: There was no sufficient degree of awareness or intention to impose legal responsibility for that . .
Cited – Societe Generale de Paris v Dreyfus Bros 1885
The court acknowledged how serious it was for a foreigner to be troubled by English proceedings, and therefore ‘the Court ought to be exceedingly careful before it allowed a writ to be served out of the jurisdiction’. . .
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
Cited – National Assistance Board v Wilkinson 1952
It is a fundamental principle of statutory construction that Parliament should not be taken as effecting a fundamental alteration in the general law, by (say) abolishing a long established defence, unless it made this expressly clear in the . .
Cited – Emmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .

Cited by:
Cited – Budu v The British Broadcasting Corporation QBD 23-Mar-2010
budu_bbcQBD2010
The defendant sought to strike out the claimant’s action in defamation. It had reported that the police had withdrawn an employment offer to claimant after doubting his immigration status.
Held: The claims should be struck out. The articles . .
See Also – Metropolitan International Schools Ltd (T/A Skillstrain And/Or Train2Game) v Designtechnica Corporation (T/A Digital Trends) and Others QBD 1-Oct-2010
The court set at andpound;50,000 the damages after a finding of defamation of the claimant training company for materials published by the defendant thorugh their web-site. An internet search engine was not liable in defamation because the mental . .
Cited – Tamiz v Google Inc Google UK Ltd QBD 2-Mar-2012
The claimant sought damages in defamation against the defendant company offering internet search facilities. The words complained of had been published in a blog, and in comments published on the blog.
Held: Jurisdiction should be declined. . .
Cited – Tamiz v Google Inc CA 14-Feb-2013
The respondent hosted a blogs platform. One of its user’s blogs was said by the appellant to have been defamatory. On discovery the material had been removed quickly. The claimant now appealed against his claim being struck out. He argued as to: (1) . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Defamation, European, Litigation Practice

Updated: 01 November 2021; Ref: scu.347819

Alexander, Farrelly and Others, Re Judicial Review: QBNI 5 Mar 2009

Each claimant said that they had been wrongfully arrested, the arresting police officers having either failed to ask whether the arrest was necessary (Farrelly), or mistakenly concluding so.
Held: The Order now contained in regulation 26(5) an exhaustive list of the possible reasons for an arrest, and the Code of Practice required the officer to consider whether an alternative, less intrusive alternative was available.
Belief involves a judgement that a state of affairs actually exists; suspicion that a state of affairs might well exist. As to whether the requirement for having reasonable grounds for suspicion restricted the court to the officer’s knowledge at the time, a court should concentrate on the specific grounds to which the constable had regard. However a wilful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest cannot be ignored, and ‘where a police officer is called upon to make a decision as to the necessity for an arrest, the grounds on which that decision is based can only be considered reasonable if all obviously relevant circumstances are taken into account. In particular, it is necessary that he make some evaluation of the feasibility of achieving the object of the arrest by some alternative means, such as inviting the suspect to attend for interview.’
As to the ‘necessity’ of an arrest: ‘the requirement that the constable should believe that an arrest is necessary does not signify that he requires to be satisfied that there is no viable alternative to arrest. Rather, it means that he should consider that this is the practical and sensible option.’
Judicial review was not the appropriate means to investigate such allegations: ‘a challenge by way of judicial review is an unacceptable type of satellite litigation which not only distracts from the proper conduct of the criminal proceedings but seeks to remove a discrete issue from the criminal court which is its natural home. The second reason is that in almost all cases, the issues which arise are far more comfortably and satisfactorily accommodated in a form of proceeding which involves the giving of oral testimony and the testing of claims and counterclaims under cross examination.’
In Farrelly’s case, the officer had a practice of unquestioningly arresting anyone attending voluntarily for interview. He did not consider the alternative, and review of that arrest was granted: ‘ this arrest cannot be said to have been based on reasonable grounds for believing that it was necessary. ‘ The court treated the action as an ordinary writ.
A process is either a ‘criminal cause or matter’ or it is not. It is not capable of having chameleon qualities whereby it changes status from one to the other depending on the specific facts at any particular stage of the proceedings. The underlying arrest and investigatory process is a criminal cause or matter and the court considered that all four cases were to be so regarded irrespective of what had occurred since the date of arrest.
Applying re Coleman, a divisional court with two or more judges had jurisdiction to hear such cases which are not criminal causes or matters.

Kerr LCJ, Higgins LJ, Girvan LJ
[2009] NIQB 20
Bailii
Police and Criminal Evidence (Northern Ireland) Order 1989 26(4)
Northern Ireland
Citing:
Cited – Gifford v Kelson 1943
(Canada – Manitoba) ‘suspicion is much less than belief; belief includes and absorbs suspicion’. . .
Cited – Dallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
Cited – O’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
Cited – Johnson v Whitehouse 1984
There is a relevant distinction between suspecting and believing in a police officer’s mind: ‘the dictionary definitions of those words . . of course, do show that the word ‘believe’ connotes a greater degree of certainty, or perhaps a smaller . .
Cited – Dallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
Cited – Baker v Oxford 1980
The court considered the distinction between ‘belief’ and ‘suspicion’ when powers of arrest are exercised. . .
Cited – Regina (Aru) v Chief Constable of Merseyside Police CA 30-Jan-2004
The applicant had been cautioned by the police. The victim sought judicial review of that decision. The respondent now appealed.
Held: The court of appeal had no jurisdiction to hear an appeal against a judicial review in a criminal matter . .
Cited – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .
Cited – JR14, Re Judicial Review QBNI 22-Nov-2007
The court said that the test of whether proceedings were in a criminal cause or matter should be: ‘Is the application before the court ancillary or incidental to a substantive process which places the applicant at risk of a criminal charge or . .
Cited – Regina (Aru) v Chief Constable of Merseyside Police CA 30-Jan-2004
The applicant had been cautioned by the police. The victim sought judicial review of that decision. The respondent now appealed.
Held: The court of appeal had no jurisdiction to hear an appeal against a judicial review in a criminal matter . .
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Cited – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
Cited – Cuoghi v Governor of Her Majesty’s Prison Brixton and Government of Switzerland CA 15-Jul-1997
The obtaining of an order to obtain evidence in support of a writ of habeas corpus application is a criminal matter. The Court of Appeal has no civil jurisdiction. Extradition proceedings, as well as proceedings ancillary or incidental to those . .
Cited – Regina v Blandford Justices CA 1990
The applicant had been charged with public order offences and had been remanded in custody by the Magistrates’ Court. He immediately commenced judicial review proceedings on the grounds that he was charged with an offence which was not punishable . .
Cited – Carr v Atkins CA 1987
The police had applied to a judge for an order under the 1984 Act requiring the applicant, a suspect in a fraud investigation, to produce documents falling within the definition of ‘special procedure documents’ under the Act. The applicants sought . .
Cited – In Re Coleman’s Application CANI 1988
The court asked what was the result of a first instance hearing of a matter where it had incorrectly concluded the matter to be a criminal cause. Was it ultra vires?
Held: Lord Lowry CJ said: ‘It is an accepted maxim that nothing is to be . .

Cited by:
Cited – Richardson v The Chief Constable of West Midlands Police QBD 29-Mar-2011
The claimant, a teacher, said he had been unlawfully arrested and detained after an allegation of assault from a pupil. Having attended the police station voluntarily, he said that the circumstances did not satisfy the required precondition that an . .
Cited – Hayes v Merseyside Police CA 29-Jul-2011
The claimant had been arrested after a complaint of harassment. The officer then contacted the complainant who then withdrew his complaint. The officer went to visit the complainant to discuss it further. On his return the claimant was released from . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Police, Litigation Practice, Judicial Review

Updated: 01 November 2021; Ref: scu.346495

Mareva Compania Naviera SA v International Bulkcarriers SA: CA 1 Feb 1975

An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets.
Held: The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: ‘A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient.’ The order could be made even though it dealt with assets in which the plaintiff claimed no direct right.

[1975] 2 Lloyd’s Rep 509, [1980] 1 All ER 213
Supreme Court of Judicature (Consolidation) Act 1925 45(1)
England and Wales
Cited by:
Cited – Third Chandris Shipping Corporation v Unimarine SA CA 1979
The court gave guidelines for the granting of Mareva injunctions as follows: ‘(i) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. . (ii) The plaintiff should give . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.190024

In re Housing of the Working Classes Act 1890, Ex parte Stevenson: CA 1892

A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final.
Lord Esher MR said: ‘I am, on principle and on consideration of the authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final. In either case there is no appeal to this Court. What was said in the case of Lane v. Esdaile supports the view that I am taking. But the very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant be correct, it would follow that the case might be taken from one Court to another till it reached the House of Lords on the question whether there should be leave to appeal. That cannot be so. For these reasons, I think the appeal must be dismissed.’
Fry LJ said: ‘I say an ‘appeal’ because the proceeding is in substance an appeal, and the legislature has called it so in the Act. The legislature has thought fit to impose a condition in respect of this right of appeal, viz., that the leave of the High Court must be obtained, which leave is to be granted in the manner pointed out, viz., either by the Divisional Court or by a judge at chambers. Then is the order – for such I will assume it to be – of the High Court, granting or refusing leave to appeal, subject to appeal? In my opinion it is not. I do not come to that conclusion on the ground that the word ‘order’ is not properly applicable to it; but from the nature of the thing and the object of the legislature in imposing this fetter on appeals. The object clearly was to prevent frivolous and needless appeals. If, from an order refusing leave to appeal, there may be an appeal, the result will be that, in attempting to prevent needless and frivolous appeals, the legislature will have introduced a new series of appeals with regard to the leave to appeal. Suppose, for the sake of argument, that in this case the claimant’s grounds for wishing to appeal are frivolous; if the contention on his behalf is correct, he could appeal from the judge at chambers to the Divisional Court, from the Divisional Court to this Court, and from this Court to the House of Lords on the question whether he shall be allowed to appeal. It appears to me that that would be an absurd result in the case of a provision the object of which is to prevent frivolous and needless appeals. Therefore, from the very nature of the thing the decision of the Court which has the power of giving leave to appeal is, in my opinion, final. This seems to me to be the ratio decidendi of Lane v. Esdaile. That case appears to decide that, where the right to appeal depends upon the granting or refusal of leave to appeal by a Court, that granting or refusal of leave must be final.’

Lord Esher MR, Fry, Lopes LJJ
[1892] 1 QB 609
Housing of the Working Classes Act 1890
Northern Ireland
Citing:
Applied – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .

Cited by:
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Bland v Chief Supplementary Benefit Officer SSCS 1-Dec-1982
Application for leave to appeal to the Court of Appeal against a ruling of the Social Security Commissioner. The tibunal was asked if the Court of Appeal any jurisdiction to give leave to appeal from the refusal of a Social Security Commissioner to . .
Cited – Huggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .
Cited – Sarfraz v Disclosure and Barring Service CA 22-May-2015
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.182908

Anton Piller v Manufacturing Processes Ltd: CA 8 Dec 1975

Civil Search Orders possible

The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search order (as opposed to a criminal search warrant), where the court had in effect ordered ex parte the defendant to allow the plaintiff entry to his premises to inspect documents. The plaintiff appealed against refusal of such an order.
Held: The appeal succeeded, and the order made. This type of order requires an applicant to satisfy four essential pre-conditions: that there is an extremely strong prima facie case; that the damage which they will suffer will be serious; that there is clear evidence that the respondents have in their possession some damaging documents or other material; and that there is a real possibility that the material might be destroyed before any application inter partes could be brought.
Lord Denning MR said: ‘Let me say at once that no court in this land has any power to issue a search warrant to enter a man’s house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say ‘Get out’. That was established in the leading case of Entick v Carrington (1765) 2 Wils.K.B.275. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorize the plaintiff’s solicitors or anyone else to enter the defendants’ premises against their will. It does not authorize the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window . . The plaintiffs must get the defendants’ permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders them to give permission – with, I suppose, the result that if they do not give permission, they are guilty of contempt of court.’

Lord Denning MR, Ormrod LJ, Shaw LJ
[1976] Ch 55, [1975] EWCA Civ 12, [1976] 1 All ER 779, [1976] 2 WLR 162, [1976] RPC 719, [1976] FSR 129
Bailii
England and Wales
Citing:
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – EMI v Pandit ChD 3-Dec-1974
The making of an order allowing the plaintiff’s to execute a search on the other party’s premises is in effect part of the process of discovery. Templeman J discussed the making of such orders ex parte: ‘if it appears that the object of the . .
Cited – The United Company of Merchants of England, Trading To The East Indies v Roger Kynaston, Esq HL 9-Mar-1821
The Respondent, an impropriate rector, having by a decree of the Court of Chancery been found to be entitled (under the decree made in pursuance of the act 37 Henry VHI.) to the tithes, according to the value, of warehouses in London, occupied by . .

Cited by:
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – Rank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.188779

Three Rivers District Council and Others v Governor and Company of The Bank of England: HL 18 May 2000

The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly pleaded, and the bank knew the case it had to answer. The issue of whether there was sufficient evidence to support the allegation to the high standard required, was not a matter for summary assessment, but for the judge at trial. It was not appropriate to strike out the action. The defendant must be a public officer in a wide sense, and exercising power as such.
A claim of misfeasance in public office gives rise to four principal questions: ‘i) Was the conduct complained of that of public officers, exercising power in that capacity?
ii) Did the officers act knowingly or recklessly beyond their powers?
iii) Did they thereby cause damage to the claimant?
iv) Did they know that the act(s) in question probably would cause such damage or were they reckless in that regard?’
Lord Steyn said: ‘The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts, knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.’

Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
Gazette 08-Jun-2000, [2000] UKHL 331, [2000] 2 WLR 1220, [2000] 3 All ER 1
Bailii
First Council Banking Co-ordination Directive (77/780/EEC)
England and Wales
Citing:
Appeal from – Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) CA 10-Dec-1998
The tort of misfeasance in public office is not separated into two distinct limbs. In each case the Plaintiff must show a deliberate and dishonest abuse of his position by a public official aware of the loss that will follow or reckless as to such a . .
Cited – Turner v Sterling 1671
The plaintiff complained that his election as one of two custodians of London Bridge, a remunerated office, was thwarted by the malicious and unlawful action of the Lord Mayor. It was an action upon the case.
Held: The action would lie. Wylde . .
Cited – Ashby v White KBD 1703
Mr Ashby a burgess of the borough of Aylesbury was deprived of his right to vote by the misfeasance of a returning officer.
Held: The majority rejected the claim.
Lord Holt CJ (dissenting) An action would lie: ‘If the plaintiff has a . .
Cited – Davis v Bromley Corporation CA 1907
The plaintiff had submitted building plans for the defendant’s approval, which were refused for alleged non-compliance with by-laws. The Plaintiff contended that the plans complied with the by-laws and that the rejection was not bona fide.
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Dunlop v Woollahra Municipal Council PC 1982
A plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry. The tort was well establshed. . .
Cited – Davis v Radcliffe PC 5-Apr-1990
(Isle of Man) Misfeasance in public office.
Held: No duty of care was owed by financial regulators towards investors. . .
Cited – Yuen Kun-Yeu v Attorney-General of Hong Kong PC 1987
(Hong Kong) The claimant deposited money with a licensed deposit taker, regulated by the Commissioner. He lost his money when the deposit taker went into insolvent liquidation. He said the regulator was responsible when it should have known of the . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
Cited – Jones v Swansea City Council CA 1990
The defendant council had originally resolved in favour of allowing the plaintiff to use premises leased to her by the council as a club; the plaintiff’s husband was at that time a member of the majority group on the council; there was then an . .
Cited – Regina v Bowden (T) CACD 24-Feb-1995
The defendant, a maintenance manager, was accused of misconduct in public office. He had caused works to be carried out by other employees of the local authority on premises occupied by a friend when such works were not required under the . .
Cited – Jones v Swansea City Council HL 2-Jan-1990
The case concerned the reversal at a council meeting of a decision taken under different political control. The principal complaint centred on two councillors but it was that all 28 members of that Labour group who took part in that decision had . .
Cited – Mayor of Bradford v Pickles HL 29-Jul-1895
The plaintiffs sought an injunction to prevent the defendant interfering with the supply of water to the city. He would have done so entirely by actions on his own land.
Held: The plaintiffs could have no property in the water until it came on . .
Cited – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
Cited – Racz v Home Office HL 17-Dec-1993
The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or . .
Cited – Harman v Tappenden 1801
Allegation of abuse of power by judge.
Held: An action does not lie against individuals for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff; at least not without proof of malice. . .
Cited – Ackerley v Parkinson 23-Jan-1815
Abuse of power by judge . .
Cited – Bourgoin SA v Minister of Agriculture Fisheries and Food CA 1985
The plaintiffs were French producers of turkeys. They alleged that the Minister revoked their licence to import turkeys into this country by a decision that was ultra vires and motivated by a desire to assist British turkey producers, and that this . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – Cullen v Morris 1819
. .
See also – Three Rivers District Council and others v Bank of England CA 2-Oct-1997
Summary of joint judgment. . .
Cited – Taylor v Nesfield 1854
Misuse of position by judge . .
Cited – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
Cited – Tozer v Child 1857
. .
Cited – Barnard v Restormel Borough Council CA 6-Feb-1998
The council appealed a refusal to strike out the proceedings. The claimant alleged misfeasance in a planning decision giving a competitor consent to development. He said the mayor had deceived the planning committee as to the need to consider the . .

Cited by:
Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – Rachmaninoff and Others v Sotheby’s and Another QBD 1-Mar-2005
The defendant had offered for sale by auction recently discovered works of Rachmaninoff. The claimants, descendants of the composer asserted ownership through his estate. The defendants refused to identify the seller.
Held: The claim should . .
Cited – Hilda Amoo-Gottfried v Legal Aid Board (No 1 Regional Committee) CA 1-Dec-2000
The claimant appealed an order dismissing her claim for misfeasance in public office by the defendant, for the way in which they had mishandled her membership of duty solicitor rota schemes.
Held: The court discussed the requirements for . .
Cited – Seray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Cited – Muuse v Secretary of State for The Home Department CA 27-Apr-2010
The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, . .
Cited – Howarth v Gwent Constabulary and Another QBD 1-Nov-2011
The claimant alleged malicious prosecution and misfeasance in public office against the defendant. He had been charged with perverting the course of justice. He had worked for a firm of solicitors specialising in defending road traffic prosecutions. . .
Cited – Houchin v Lincolnshire Probation Trust QBD 9-Apr-2013
houchin_lincsPSQBD2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .
See Also – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative, European, Torts – Other

Leading Case

Updated: 01 November 2021; Ref: scu.89888