Category: Litigation Practice

FM Capital Partners Ltd v Marino and Others: ComC 31 Oct 2018

[2018] EWHC 2889 (Comm), [2018] WLR(D) 677, [2019] 1 WLR 1760
Bailii, WLRD
England and Wales
Citing:
See Also – FM Capital Partners Ltd v Marino and Others ComC 11-Jul-2018
Claims for conspiracy to injure . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 9-Oct-2018
Proceedings to enforce court judgment . .
See Also – Marino v FM Capital Partners Ltd CA 2016
The test for proprietary injunctions the courts impose a stricter test on defendants wishing to use assets falling within the scope of the injunction to pay legal fees. . .

Cited by:
See Also – FM Capital Partners Ltd v Marino and Others ComC 1-Nov-2018
consequentials hearing . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 28-Mar-2019
Post judgment assessment of damages. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.631309

Bayer v Winter: CA 1986

Fox LJ said: ‘Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink if it is of the opinion that an injunction is necessary for the proper protection of a party to the action, from granting relief, notwithstanding it may, in its terms, be of a novel character.’
Fox LJ
[1986] 1 WLR 497
Senir

Senior Courts Act 1981 37(1)
England and Wales
Citing:
Cited – Smith v Peters ChD 24-Jun-1875
Where an agreement has been entered into for the sale of a house at a fixed price, and of the fixtures and furniture therein at a valuation by a person named by both parties, and he undertakes the valuation, but if refused permission by the vendor . .

Cited by:
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.
Updated: 30 October 2021; Ref: scu.668764

Smith v Peters: ChD 24 Jun 1875

Where an agreement has been entered into for the sale of a house at a fixed price, and of the fixtures and furniture therein at a valuation by a person named by both parties, and he undertakes the valuation, but if refused permission by the vendor to enter the premises for that purpose, the Court will make a mandatory order to compel the vendor to allow the entry to enable the valuation to proceed.
The Court has jurisdiction to make any interlocutory order which is
reasonably asked as ancillary to the administration of justice at the hearing.
Sir George Jessel MR said: ‘I have no hesitation in saying that there is no limit to the practice of the court with regard to interlocutory applications so far as they are necessary and reasonable applications ancillary to the due performance of its functions, namely, the administration of justice at the hearing of the cause.’
Sir George Jessel MR
[1875] UKLawRpEq 126, (1875) LR 20 Eq 511
Commonlii
England and Wales
Cited by:
Cited – Bayer v Winter CA 1986
Fox LJ said: ‘Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink if it is of the opinion that an injunction is necessary for the . .
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.
Updated: 30 October 2021; Ref: scu.668765

Marino v FM Capital Partners Ltd: CA 2016

The test for proprietary injunctions the courts impose a stricter test on defendants wishing to use assets falling within the scope of the injunction to pay legal fees.
[2016] EWCA Civ 1301
England and Wales
Citing:
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 26-Jan-2009
Application to vary a freezing order made on a without notice application.
Held: Lewison J set out the proper approach at para. 6 by setting out the four questions which should be addressed: ‘(1) does the claimant have an arguable proprietary . .

Cited by:
See Also – FM Capital Partners Ltd v Marino and Others ComC 1-Nov-2018
consequentials hearing . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 28-Mar-2019
Post judgment assessment of damages. . .
See Also – Marino v FM Capital Partners Ltd CA 26-Feb-2020
. .
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 . .
Cited – FM Capital Partners Ltd v Marino and Others ComC 11-Jul-2018
Claims for conspiracy to injure . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 9-Oct-2018
Proceedings to enforce court judgment . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 31-Oct-2018
. .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.668763

ABK v KDT and Another: QBD 13 May 2013

The court heard an application for a continuation of an injunction retraining the use of private photographs in order to inflict ‘enough pain and humiliation matching my own during your love affair’.
Held: The order was continued anticipating the use fo permanent undertakings to avoid a trial of the action.
Tugendhat J
[2013] EWHC 1192 (QB)
Bailii

Updated: 27 October 2021; Ref: scu.509113

Barnardo v Ford: HL 1892

A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. A writ of habeas corpus against Dr Barnardo at the suit of the boy’s mother was refused by Mathew J some three months after the boy had been handed over to the American. The Divisional Court did granted the writ some six months later on a renewed application, and this decision was affirmed by the Court of Appeal.
Held: The defendant’s appeal failed. Lord Herschell said that a writ of habeas corpus should not be ‘used as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it . . If . . it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen’s Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. Now, it is impossible to read the judgment of the Lord Chief Justice without seeing that he did entertain such a doubt, and that he was not prepared upon the affidavits to accept as conclusive the statements of the appellant… I must not be understood as indicating that I think the story told by the appellant is untrue. But, as the matter is to undergo further investigation, it would obviously be improper to enter upon any discussion of the statements contained in the affidavits, or to express any opinion upon them.’
Lord Herschell
[1892] AC 326
England and Wales
Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Ex parte Mwenya CA 1959
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.470683

Williams v Glasbrook Brothers Ltd: CA 1947

It was not open to the Court of Appeal to review a previous decision of the same Court for conformity with an earlier decision of the House of Lords (Lord Greene MR). It was for the House of Lords to correct the previous Court of Appeal’s error, and not a function open to the Court of Appeal in a later case.
Lord Greene MR, Cohen and Asquith LJJ
[1947] 2 All ER 884
England and Wales
Cited by:
Cited – London Borough of Lambeth and Hyde Southbank Ltd v O’Kane, Helena Housing Ltd CA 28-Jul-2005
In each case the authority had obtained an order for possession of the tenanted properties, but the court had suspended the possession orders. The tenants had therefore now become ‘tolerated trespassers’. They now claimed that they had again become . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.231657

Mastercard Incorporated and Others v Merricks: SC 11 Dec 2020

procedure for collective proceedings introduced by amendment to the Competition Act 1998 (‘the Act’) for the purpose of enabling small businesses and consumers more easily to bring claims for what may loosely be described as anti-competitive conduct in breach of the provisions of the Act.
Lord Kerr, Lord Briggs, Lord Sales, Lord Leggatt, Lord Thomas
[2020] UKSC 51, [2021] Bus LR 25
Bailii
Competition Act 1998
England and Wales

Updated: 27 October 2021; Ref: scu.656806

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’
AL Smith LJ
[1899] 1 QB 546
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.605167

ZAM v CFW and Another: QBD 7 Mar 2011

The parties were in dispute over the management of a trust. One sought an injunction restraining the other from publishing allegations of breach of trust.
Held: In the unusual circumstances, an order could be made. The claimant had put forward very detailed evidence that the allegations complained of were untrue, and none of the defendants had said they would be relying on a defence of justification or any other substantive defence.
Tugendhat J
[2011] EWHC 476 (QB)
Bailii
England and Wales
Cited by:
Cited – Vaughan v London Borough of Lewisham and Others QBD 11-Apr-2013
The claimant sought an order to restrain anticipated defamatory comments and evidence to be given to an employment tribunal.
Held: It could not be said as the claimant asserted that dfeences were bound to fail, and no determination should be . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.430504

Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd: ChD 7 Mar 2011

The parties disputed the expert evidence to be admitted at a forthcoming trial. The claimant opposed the use of a particular expert witness who had had access to its confidential and privileged information and should not be allowed to act for the defendant.
Mann J
[2011] EWHC 474 (Ch)
Bailii
England and Wales
Cited by:
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.430375

McDonald v Secretary of State for Scotland: IHCS 2 Feb 1994

The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. The 1947 Act deprived Scottish litigants of their previous right to obtain interdict and interim interdict against the Crown. Orders to that effect could not be pronounced in either the sheriff court or the Court of Session. An House of Lords decision on an action against a state was not necessarily binding in Scotland. There were formidable difficulties in the way of a submission that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 did not constitute civil proceedings within the meaning of section 21.
Lord Justice Clerk Ross
Times 02-Feb-1994, 1994 SC 234
Crown Proceedings Act 1947 21
Citing:
Appeal from – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .

Cited by:
Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Appealed to – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – Petition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions SCS 26-Oct-2001
Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make . .
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Updated: 26 October 2021; Ref: scu.83524

Johnson v Walton: 1990

There was a continuing obligation to obey a court order until it was discharged.
[1990] 1 FLR 350
England and Wales
Cited by:
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Cited – Crown Prosecution Service v T Admn 5-Apr-2006
The prosecutor appealed after the district judge had at first granted an anti-social behaviour order, but had later thought it too wide and that it was unenforceable and void.
Held: the district judge had exceeded his powers. There were . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.197888

F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry: HL 1975

No Indemnity for misadministration

The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
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 – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068

Hadkinson v Hadkinson: CA 1952

The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong thing for a court to refuse to hear a party to a cause, and it is only to be justified by great considerations of public policy. It is a step which a court will only take when the party itself impedes the course of justice and there is no other effective means of securing his compliance . . Applying this principle, I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or enforce the orders which it may make, then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.’
Romer LJ said: ‘It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.’
Denning LJ, Romer LJ
[1952] P 285, [1952] FLR 287
England and Wales
Citing:
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .

Cited by:
Cited – Barnette v Government of the United States of America; United States Government v Montgomery (No 2) CA 24-Mar-2003
The appellant sought to resist the registration here of a confiscation order made in the US. She argued it would be contrary to the interests of justice to register it, that the US procedure would be unlawful here under the Convention, the appeal . .
Approved – 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 – Motorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
Cited – A, Regina (on the Application of) v Harrow Crown Court and others Admn 14-Aug-2003
The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under . .
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Cited – In Re Swaptronics Ltd ChD 24-Jul-1998
A party who was in contempt of court should not be debarred from continuing to take a proper part in a court action unless that contempt was serious enough seriously to interfere with the fair conduct of the trial. ‘The courts need powers of . .
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Crown Prosecution Service v T Admn 5-Apr-2006
The prosecutor appealed after the district judge had at first granted an anti-social behaviour order, but had later thought it too wide and that it was unenforceable and void.
Held: the district judge had exceeded his powers. There were . .
Approved – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – In re W (Children) FD 25-Jul-2014
. .
Cited – In re S (A Child) (Family Division: Without Notice Orders) FD 2001
Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will . .
Cited – Re W (A Child) (A Child) (Adoption Order: Leave to Oppose) CA 16-Oct-2013
Sir James Munby discussed the lamentable failure by a local authority to comply with an order of the court: ‘That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.180304

Isaacs v Robertson: PC 13 Jun 1984

(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by the home court. If it is not raised by any party, the Board cannot take the point of its own motion.
The Board drew a distinction between orders regularly obtained and irregularly obtained, saying that the former were the proper subject of an appeal, while in the case of the latter, application could be made to set aside. The only error of law which subverts jurisdiction is an error as to whether the tribunal is entitled to enter upon the inquiry at all: an excess of constitutive jurisdiction. In a court of unlimited jurisdiction such as the High Court, not even such an error robs the court’s orders of effect.
Lord Diplock identified a category of orders of a court of unlimited jurisdiction which a person affected ‘is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make.’
Lord Diplock
[1985] 1 AC 97, [1984] UKPC 22
Bailii
England and Wales
Citing:
Approved – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .

Cited by:
Cited – Lewis v Henry St Hillaire and others PC 22-May-1996
(Saint Vincent and The Grenadines) A writ was issued, but little progress was made. The respondent applied for a declaration that the action had been abandoned and was incapable of being revived.
Held: The provision was one local to the home . .
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
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 . .
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 – 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 – Regina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte M S CA 3-Jul-1997
The hospital authorities applied ex parte and were granted a declaration which dispensed with the applicant’s consent to medical treatment.
Held: Her appeal was allowed. A declaration (especially one affecting an individual’s personal . .
Cited – In re S (A Child) (Family Division: Without Notice Orders) FD 2001
Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will . .
Cited – In re W (Children) FD 25-Jul-2014
. .
Cited – Re W (A Child) (A Child) (Adoption Order: Leave to Oppose) CA 16-Oct-2013
Sir James Munby discussed the lamentable failure by a local authority to comply with an order of the court: ‘That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a . .
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 (or, indeed, anyone else) 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 . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.185688

AIG Europe Sa and Others v John Wood Group Plc and Another: ComC 24 Sep 2021

‘The Claimants, in three separate but related proceedings, are various insurers who seek to continue, on the return date, anti-suit injunctions which were granted on a without notice basis in August 2021. The injunctions relate to proceedings commenced by the Second Defendant against the Claimants in February 2021 in the Court of Queen’s Bench of Alberta.’
Mr Justice Jacob
[2021] EWHC 2567 (Comm)
Bailii
England and Wales

Updated: 25 October 2021; Ref: scu.668385

Travelport Ltd and Others (The ‘Enett Claimants’) v Wex Inc: ComC 25 Jun 2020

Whether there should be expedition and preliminary issues, because despite the fact that there is enthusiasm on one side and at least consensus on the other side as to the ordering of preliminary issues on an expedited basis, it is obviously a matter for the court and the decision is a discretionary one.
[2020] EWHC 1960 (Comm)
Bailii
England and Wales

Updated: 23 October 2021; Ref: scu.653084

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 when it is intended that some preliminary steps should be taken before the action is maintainable at all’ and ‘It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last.’
The legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory.
Bowen LJ
(1890) 45 Ch D 139
Charitable Trusts Act 1853 17
Cited by:
Considered – 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 – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.226024

Edbro Plc v Vickerstaff: CA 22 May 1998

Order dismissing appeal where the appellant had failed to appear or notify the court of why he was not doing so.
[1998] EWCA Civ 886
England and Wales
Citing:
See Also – Vickerstaff v Edbro Plc EAT 23-Jun-1994
The claimant appealed against refusal of an order for discovery. He had wanted to disclose what he thought were illegal activities by the firm. He said that he had been dismissed for that reason and that disclosure was required for him to establish . .
See Also – Vickerstaff v Edbro Plc EAT 8-Mar-1995
The claimant had made separate complaints of unfair dismissal, and under the 1986 Act. He now appealed an order combining the two cases. The respondent alleged that there were common issues of law and fact.
Held: The decision was one for the . .
See Also – Vickerstaff v Edbro Plc EAT 22-May-1996
The claimant having failed in his claim for unfair dismissal, wanted to claim against the tribunal and appeal tribunal alleging a conspiracy against him. The hearing had been heard in private to which he had objected. He wanted to go straight to the . .
See Also – Vickerstaff v Edbro Plc CA 28-Jan-1997
The appellant’s employment had terminated in circumstances where he had threatened to publicise matters about the defendant’s activities, but had failed to co-operate with the company in investigating his allegations by particularising them.
Updated: 23 October 2021; Ref: scu.144365

Green v Gauntlett: 1795

The Court on motion for a new trial held, that the giving notice of trial at the end of half a year after issue joined, would prevent the necessity of giving a term’s notice till a year after the last notice which was given and countermanded. Strange pro def.
[1795] EngR 1849, (1795) 1 Str 531, (1795) 93 ER 680 (D)
Commonlii
England and Wales

Updated: 22 October 2021; Ref: scu.354194

Attorney-General v The Haberdashers’ Company: 1840

The master in ordinary having become incapacitated from attending to the Business of his office, the matters were transferred to the master in rotation, with liberty for him to adopt the proceedings already had.
One of the Masters in ordinary having by illness become permanently incapacitated from attending to the Business of his office, frequent applications were made by motion to the court, to transfer the matter to the office of another master. in some of these cases, the Masters report had actually been prepared, and only required his signature; and the application in such cases was, that the master in rotation might sign the report.
The master of the rolls settled, in all these cases, that the proper order to be made was, to transfer the matters to the master in rotation, ‘with liberty for him, if he should think fit, to adopt the proceedings already had in the Masters office.’
[1840] EngR 11, (1840) 3 Beav 130, (1840) 49 ER 51 (A)
Commonlii
England and Wales

Updated: 22 October 2021; Ref: scu.309437

Forbes v Forbes: 25 Mar 1852

On the application for a commission for the examination de bene esse of a witness above seventy years of age (such witness being the Plaintiff in the cause and a Defendant in a cross-cause, whose time for answering had expired, and whose answer had not been put in, and being also the party who applied for the commission for the purpose of being examined in support of his own case, under the stat. 14 and 15 Vict. e. 99), the Court refused to impose it as a condition in making the order that the answer should be filed.
[1852] EngR 397 (A), (1852) 9 Hare 461
Commonlii
England and Wales

Updated: 22 October 2021; Ref: scu.295520

P v T Ltd: ChD 7 May 1997

A order for the disclosure of documents can be proper if it is the only method of founding proceedings against a third party, even though there might be no sufficient proof without the documents. An order was made because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action. In extreme circumstances, it was legitimate to exercise the power for disclosure in a case where not only the name of the tortfeasor but the full nature of the suspected tort was unknown.
Sir Richard Scott V-C
Times 07-May-1997, [1997] 1 WLR 1309, [1997] 4 All ER 200
England and Wales
Cited by:
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 – Gregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
Cited – Axa Equity and Life Assurance Plc Society Plc and others v National Westminster Bank Plc and others CA 7-May-1998
Discovery of documents from third parties. Morritt LJ said that an order might be made where the party holding the documents could be said to have involvement in terms of ‘causing or facilitating’ the wrong. . .
Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.84530

John and Others v Express Newspapers and Others: CA 26 Apr 2000

Where a party sought from a newspaper disclosure of the source of a journalists story, and an order for contempt in default he was under a duty first to attempt to find that source through other means. A failure even to try can be persuasive to the court that no order should be made. The statute required a two stage process by the judge. He first decided whether the disclosure was necessary, and secondly he must weight the conflicting interests. An inquiry might be necessary even if no fruitful outcome was anticipated. The court may be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances.
Gazette 25-May-2000, Times 26-Apr-2000, [2000] EWCA Civ 135, [2000] 1 WLR 1931
Bailii
Contempt of Court Act 1981 10
England and Wales
Citing:
Appeal from – Sir Elton Hercules John, Happenstance Ltd, William A Bong Ltd, J Bondi Ltd, Eversheds (A Firm) v Express Newspapers, Rosie Boycott, Rachel Baird QBD 3-Mar-2000
The Claimants sought an order for the Defendants to disclose the identity of their source of the confidential information contained in a draft advice the property of the Claimants and of the precise circumstances in which it came to the attention of . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.82529

Girvan v Inverness Farmers Dairy and Another: HL 13 Nov 1997

(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: ‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges.’
The House will always be slow to interfere with a decision of the Court of Session on matters of procedure and the Court of Session is far better placed than the House can ever be to assess what changes could appropriately be made in procedure and practice relating to the conduct of civil jury trials in that court.
Lord Clyde, Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Slynn of Hadley, Lord Hope of Craighead
Times 15-Dec-1997, [1997] UKHL 47, 1998 SC (HL) 1, 1998 SLT 21, 1998 SCLR 72
House of Lords, Bailii
Court of Session Act 1988
Scotland
Citing:
Appeal from – Girvan v Inverness Farmers Dairy and Another IHCS 1996
The claimant sought damages. One of the heads of claim that were not in dispute was that the pursuer’s injuries had made it impossible for him to continue as a dedicated clay pigeon shot and had as a result lost the very real prospect of winning . .

Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.158923

Case XCI 11 Jac 9 H 6, 7 1 Cr 417, 8, 386 Hob 18, 19, 20, 75, 116, 119 Cr 338, Marsham v Jolles Obligation, Variance Hob 20 2 Roll 147 Cr Jac 190, 290, 309: 1220

Debt upon an obligation ; the declaration was pro sexaginta libris, the bond was for sexinginta libris : the plaintiff had judgment affirmed in error. For the words in the declarationi arid the bond are to the same effect.
[1220] EngR 91, (1220-1623) Jenk 339, (1220) 145 ER 246 (C)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.461003

Case LXIV 12 Jac 1 Sid 373, 432 Sty 178 1 Vent 135 2 Jo 87 Carth 114, 289 3 Keb 693 Hob 70, Platt’s Case: 1220

In the King’s Bench, bail is entered the last day of term, and the bill filed the first, or any other day of the term ; it is sufficient by the course of the court : although in strictness of law, the law takes conusance of the defendant’s being in custody, only upon the bail being entered : and that he was delivered by the marshal upon bail. After the bail entered, he is not in custody of the marshall : and yet after the bail and before the bail, where bail is found, the court supposes him in custody, by the course of the court. Affirmed in error.
[1220] EngR 110, (1220-1623) Jenk 295, (1220) 145 ER 214 (E)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.461022

Case XX 12 Jac 11 Co 56, Bentham’s Case 5 Co 38, Tey’s Case 10 C 115 Pilfold’s Case, 117 A Dyer, 320, 369 8 Co 58, Beeeher’s Case, 59 A 11 H 6, 29 Error, Judgment, Verdict, Release, Office De Court: 1220

Annuity is brought; the plaintiff has a verdict for the annuity, but the verdict does not give any damages or costs ; the plaintiff releases the damages and costs of record : he shall have judment for the annuity for two reasons : this release shall be understood to be before the verdict ; and a writ of error does not lie for the defendant in this case ; for the reIease is for his advantage.
Error, judged and affirmed in error.
If this release had not been ; upon a writ of error brought by the defendant, the court ex officio should reverse the judgment : for, damages and costs are due as well as the annuity.
[1220] EngR 111, (1220-1623) Jenk 286, (1220) 145 ER 207 (A)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.461023

Case LXXII 11 H 7, 10 35 H 6, 1, By All The Judges In The Exchequer-Chamber Release Le Roy, Jour, Pardon: 1220

The King has a verdict against A. for debt or damages ; before judgment, the King pardons this debt and damages to A. the King shall have judgment. So it is between common persons. But because that neither a scire facias lies against the King for A. if he be in execution, nor an audita querela if he be not in execution : this pardon and release shall be allowed to discharge the execution.
[1220] EngR 84, (1220-1623) Jenk 183, (1220) 145 ER 122 (A)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460996

Case III 1 Jac 1 Arundel v Arundel Error, B R Cr Jac 11 Fines, Prerogatives, Nosme: 1220

A dedimus potestatem for the caption of a fine is directed to A. B. esquire : he takes the conusance, and afterwards is made a knight, and certifies the conuzance by the name of A. B. knight : this fine was affirmed upon a writ of error brought. The use is that the justices of both benches, and the barons of the Exchequer, take the conusance of fines in their circuits ; and afterwards, before the return of them, it happens that they are made knights ; and as such, they certify the captions : and well.
[1220] EngR 37, (1220-1623) Jenk 279, (1220) 145 ER 201 (D)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460949

Macnaughton v Macnaughton’s Trustees: IHCS 1953

It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The Courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.’
Lord Justice-Clerk Thomson
[1953] SC 387
Scotland
Cited by:
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Cited – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.184054

Clarke v Fennoscandia Ltd and others (Scotland): HL 12 Dec 2007

After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the claim, but the claimant sought to continue. The defendant was a company registered in England and now in liquidation.
Held: There was a duty on the court to recognise a foreign judgement. The claimant had already challenged the judgement for fraud and lost. In the light of the undertakings there was no longer a live issue. The issues were important only as between the parties.
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2007] UKHL 56, 2008 GWD 2-24, 2008 SC (HL) 122, 2008 SLT 33, 2008 SCLR 142
Bailii
Scotland
Citing:
See Also – Clarke v Fennoscandia Ltd and others SCS 10-Mar-2000
Outer House – application to recover costs on award by court in Delaware . .
See Also – Clarke v Fennoscandia Limited and others OHCS 23-Jul-2003
. .
Appeal from – Clarke v Fennoscandia Limited Freakley, Phillips OHCS 2-Dec-2004
The claimant had said that the defendants conspired to deny him the presidency of a company. He lost his case in the US, and the defendants chased him for costs. He asserted that the US judgment had been obtained by fraud. The defendants undertook . .
Cited – Graham v Robert Younger Ltd 1955
The complainer had given an undertaking in proceedings for his sequestration at the instance of Robert Younger Ltd. The company lodged a minute seeking his apprehension for its breach as a contempt of court. The sheriff ordered the apprehension of . .
Cited – Beggs v Scottish Ministers HL 7-Feb-2007
The claimant, a serving prisoner, had sought to sue the prison authorities for the conditions in which he was kept. He complained that his correspondence with his lawyers had been unlwafully opened by the prison. Repeatedly, undertakings were given . .
Cited – Macnaughton v Macnaughton’s Trustees IHCS 1953
It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Law Hospital NHS Trust v Lord Advocate and Another IHCS 20-May-1996
The patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, she remained alive only because feeding and hydration were provided to her artificially and because of . .
Cited – Westergaard v Westergaard 1914
The parties were a divorced couple. A decree of the Danish court had given the husband power over his son. At the relevant time the son was living in Scotland with his father.
Held: It was simply not open to a Scottish court to help the wife . .

Cited by:
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.262255

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 successive cases when you could readily have put them all in one go’
Sedley, Jacob, Norris LJJ
[2011] EWCA Civ 6, [2011] FSR 15, [2011] Bus LR 1488
Bailii
England and Wales
Cited by:
Cited – 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 . .
Cited – Warner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another SC 14-Nov-2018
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.428067

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 severe financial restrictions.
Held: The Orders in Council made under the 1946 Act giving effect to UN resolutions were effective subject to certain conditions. In particular there was a need to show reasonable cause to suspect involvement in terrorist activities, and proper opportunity to object to and answer any allegations made.
Sir Anthony Clarke MR said: ‘There is no power to appoint a special advocate in proceedings arising out of an order [made under the 2006 Order]. However, as I see it there is no reason in principle why a special advocate should not be appointed in a particular case. The authorities show that in an appropriate case the court would have the power to authorise or request the use of a special advocate, see in particular the decision of the House of Lords in Roberts . . where it was held that the court had power to do so even though it was not sanctioned by Parliament. Whether it should do so would depend on the particular circumstances of the case. It has very recently been held by the Divisional Court in Malik . . that the court has power to ask the Attorney-General to appoint a special advocate or that it should only do so in an exceptional case and as a last resort. . ‘ and ‘the court has power to order a special advocate. In most cases such an advocate should be able to ensure that the individual will receive a fair hearing. In other cases the direction would have to be discharged, see the reasoning of the House of Lords in the MB case. In either case, the interests of the individual will be protected.’
Sir Anthony Clarke MR, Sedley LJ, Wilson LJ
[2008] EWCA Civ 1187, [2009] Lloyd’s Rep FC 14, [2009] 2 All ER 747, [2009] ACD 16, [2009] 3 WLR 25
Bailii, Times
Al-Qaida and Taliban (United Nations Measures) Order 2006, Terrorism (United Nations Measures) Order 2006, United Nations Act 1946
England and Wales
Cited by:
Cited – 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 – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.277356

Booth v Leycester: 23 Feb 1837

An injunction was granted to restrain the Plaintiff from prosecuting a suit not brought to a hearing in Ireland, the subject-matter of the suit being the same as that of a suit instituted in this Court, and in which this Court had pronounced a decree, refusing the relief sought by the Plaintiff:
[1837] EngR 534, (1837) 1 Keen 579, (1837) 48 ER 430 (B)
Commonlii
England and Wales

Updated: 17 October 2021; Ref: scu.313651

Skatteforvaltningen (The Danish Customs and Tax Admin) v Solo Capital Partners Llp and Others: ComC 6 Aug 2020

Application of the Sanjay Shah Defendants for an order that a substantial sum currently held in court should be paid out for the purposes of enabling them to pay their legal fees to the end of this litigation.
Mr Justice Foxton
[2020] EWHC 2161 (Comm)
Bailii
England and Wales

Updated: 17 October 2021; Ref: scu.653087

Forbes v Skelton: 15 Feb 1837

The joint owners of plantations in Java, which they worked in the co-partnership, kept an account with certain merchants and agents at Bombay, to whom they became largely indebted in respect of money advanced and paid for the use.
Held: The account was not a mercantile account within the meaning of the exception in the statute of limitations.
A plea of the statute of limitations is not double.
Averments in a plea of the statute of limitation negativing facts that would defeat the plea, but which are not stated in the bill, are surplusage, but do not vitiate the plea.
A plea of the statute of limitations need not negative the usual general allegation that the defendant has, in his custody, documents relating to the matters contained in the bill.
[1837] EngR 510, (1837) 8 Sim 335, (1837) 59 ER 133
Commonlii
England and Wales

Updated: 16 October 2021; Ref: scu.313627

Jalla and Others v Royal Dutch Shell Plc and Others: TCC 20 Jul 2021

Claimants’ application for an extension of time in respect of both claims currently before the court – service of witness statements
[2021] EWHC 2118 (TCC)
Bailii
England and Wales
Citing:
See Also – Jalla and Others v Royal Dutch Shell Plc and Others TCC 21-Jul-2021
Issue as to whether the claimants’ purported legal representatives, Rosenblatt Limited, have authority to act . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.667723

James Buchanan and Company Ltd v Babco Forwarding and Shipping (UK) Ltd: CA 2 Dec 1976

A trailer full of whisky had been stolen. Four fifths of its retail value was excise duty. Because it was to have been exported, duty had not been paid. On the theft the owners had had to pay the duty. The owners sued the carriers for the loss, but the court had to decide the value of the cargo.
Held: At common law the carriers would have to pay the full losses, but the 1965 Act imported the European Convention.
Lord Denning discussed the correct approach to interpretation of an international convention.
Lord Denning MR, Roskill LJ, Lawton LJ
[1976] EWCA Civ 9, [1977] QB 208
Bailii
Carriage of Goods by Road Act 1965
England and Wales
Citing:
Cited – Bulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .

Cited by:
Appeal from – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.262714

Pezold v Border Timbers Ltd: QBD 6 Aug 2020

Application to set aside an ex parte order giving the Claimant permission to serve the Claim Form and other associated documents in these proceedings (including an application for an interim injunction) on the Defendant in Zimbabwe by alternative means.
Miss Julia Dias Q.C. sitting as a Deputy High Court Judge
[2020] EWHC 2172 (QB)
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.653081

Ridley v Dubai Islamic Bank Pjsc: ComC 26 May 2020

Applications, as follows:
(1) The application of the Defendant (‘the Bank’) to set aside the order of Carr J (as she then was) allowing service out of the original claim form;
(2) The Bank’s application to set aside the order of Carr J giving leave to serve the original claim form by alternative means;
(3) The application of the Claimant (‘Mr Ridley’) to amend his particulars of claim.
Christopher Hancock QC (sitting as a Judge of the High Court)
[2020] EWHC 1213 (Comm)
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.651176

KMG International Nv v Chen and Another: ComC 14 May 2020

Judgment on the application of the defendants to strike out the report of Professor Veder and the claimant’s application for permission to amend the Re-Amended Particulars of Claim and (in effect) for permission to adduce the Dutch law evidence pertaining to those amendments.
Moulder J
[2020] EWHC 1203 (Comm)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.651169

CBS United Kingdom v Lambert: CA 1982

The defendant had, over a long period, created infringing copies of works whose copyright was owned by the claimants. On investigation, large numbers of items were discovered, and the defendant had put the proceeds into readily identifiable assets. The plaintiff sought orders for their delivery up.
Held: The possibility of self-incrimination by the defendant was no bar to an order for their delivery up. The court set out guidelines for such actions saying: 1) There should be clear evidence of the defendant’s intention to dispose of the assets, but there should also be evidence that the assets had been acquired as a result of the defendant’s wrongful actions, and 2) Items for the use by the defendant in his ordinary daily life or lawful business should not be delivered up, but furnishings being objets d’art purchased to hide the proceeds could be claimed.
Lawton LJ: ‘On the facts put before us this was not a case of a Plaintiff seeking to freeze a Defendant’s assets pending trial in anticipation of getting judgment. It was one, which seemed to us to show that the first Defendant was conducting his affairs with intent to deprive anyone who got judgment against him of the fruits of victory. ‘
Lawton LJ
[1982] 3 WLR 746, [1982] 3 All ER 237
England and Wales

Updated: 14 October 2021; Ref: scu.245602

Tucker v New Brunswick Trading Company of London: CA 1890

An action was brought against three defendants, Matthews, Lamplough and the New Brunswick Trading Company of London, to restrain the company from confirming in general meeting certain agreements between the company and Matthews and Lamplough. An interim injunction was granted against Matthews and the company. Matthews asked for the usual undertaking in damages, to which the plaintiff’s counsel replied that it would of course be given. Lamplough had not been served and did not appear. When the order was drawn up, the undertaking it contained was confined to damages sustained by the company, and it was passed and entered in this form. Matthews and Lamplough appealed, asking that the undertaking might be extended to damages sustained by them respectively.
Held: Since Matthews had applied for an undertaking, which had in fact been given, the order was wrong in not extending the undertaking to damages sustained by him and could be corrected. Indeed that correction could have been made by the first instance judge under the slip rule; and did not require an appeal. However, the same did not go for Lamplough, who had not applied for an undertaking and not received one.
Cotton LJ: ‘As regards Lamplough, I am of opinion that his appeal fails; for we cannot impose on the Plaintiff any undertaking which he has not given. If a defendant applies for an undertaking, the plaintiff may decline to take any order. The Court only makes the undertaking a condition of granting an injunction; if the plaintiff refuses to give it the Court can refuse the injunction, but it cannot compel the plaintiff to give an undertaking. As a general rule, I think that when an injunction is granted the undertaking as to damages ought not to be confined to the persons restrained. In Pemberton on Decrees, it is said: ‘The undertaking applies to all the Defendants, although one or more only may be restrained.’ Mr. Pemberton does not refer to any authority for this; but I consider it to be a correct statement of the practice.’
Lindley LJ said: ‘The cases of the two Appellants are distinguishable. Matthews asked for an undertaking and got it. An undertaking is the price of an injunction, and if a man gets an injunction he must pay the price. Lamplough did not ask for an undertaking, and for anything we can tell, if he had done so the Plaintiff would have declined to take the injunction. I think, therefore, that the undertaking can only be extended to Matthews.’
Lindley LJ, Cotton LJ, Lopes LJ
(1890) 44 Ch D 249
England and Wales
Cited by:
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.231212

Rabin v Mendoza and Co: CA 1954

The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be settled without litigation. The defendants agreed at the meeting to make enquiries to see if they could obtain insurance cover against possible risk of damage to the house so that litigation could be avoided. After the interview the defendants obtained a report from another surveyor for the purpose of attempting to obtain insurance cover. No settlement was reached and the action commenced. The defendants disclosed the existence of the report in their affidavit of documents but claimed privilege from production on the ground that it was made in pursuance of a without prejudice discussion between the plaintiffs’ solicitor and the defendants’. The master, and the judge had upheld the defendant’s claim to privilege.
Held: The appeal failed.
Romer LJ said: ‘It seems to me that it would be monstrous to allow the plaintiff to make use – as he certainly would make use – for his own purposes as against the defendants of a document which is entitled to the protection of ‘without prejudice’ status.’
Denning LJ said: ‘after referring to Whiffen v. Hartwright ‘It is said, however, that, apart from legal professional privilege, there is a separate head of privilege on the ground that the documents came into existence on the understanding that they were not to be used to the prejudice of either party. ‘Without prejudice’ does not appear as a head of privilege in the White Book; but in Bray on Discovery at p. 308 it is stated: ‘The right to discovery may under very special circumstances by lost by contract as where correspondence passed between the parties’ solicitors with a view to an amicable arrangement of the question at issue in the suit on a stipulation that it should not be referred to or used to the defendant’s prejudice in case of a failure to come to an arrangement.’
That proposition is founded on Whiffen v. Hartwright (1848) 11 Beav. 111, 112, where Lord Langdale H.R. refused to order the production of letters which passed ‘without prejudice,’ observing that he ‘did not see how the plaintiff could get over this express agreement, though he by no means agreed, that the right of discovery was limited to the use which could be made of it in evidence.’ The Master of the Rolls there affirms the undoubted proposition that production can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made. This case seems to me to fall within that principle. This report was clearly made as a result of a ‘without prejudice’ interview and it was made solely for the purposes of the ‘without prejudice’ negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken. I find myself, therefore, in agreement with the decision of Master Burnand and the judge that this is not a case where production should be ordered.’
Denning LJ, Romer LJ
[1954] 1 WLR 271, [1954] 1 All ER 247
England and Wales
Citing:
Cited – Whiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
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 . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.253695

Halford v Brookes: CA 1991

The plaintiff, the mother and administratrix of the estate of a 16 year old girl, alleged that her daughter had been murdered by one or both of the Defendants. The claim was for damages for battery. Rougier J at first instance had decided that: ‘where the burden of proof is concerned it is my view that I should adopt the equivalent of the criminal standard . . I have proceeded, as indeed Mr Scrivener invited me to, on the basis that no-one, whether in a criminal or a civil court, should be declared guilty of murder, certainly not such a terrible murder as this, unless the Tribunal were sure that the evidence did not admit of any other sensible conclusion’, and went on to hold that he was sure that both Defendants were party to the murder of the deceased. Strictly speaking therefore, his decision as to the standard of proof was not essential to the result, since the Claimant would have succeeded whatever the standard of proof; and indeed was reached on the basis of a concession by leading counsel for the plaintiff.
Held: The court discussed the meaning of ‘knowledge’ for the purposes of the 1980 Act.
Held: Lord Donaldson of Lymington MR said: ‘In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.’ and ‘suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.’
Motives above and beyond obtaining damages – which a plaintiff may have in pursuing his claims in battery neither enhance nor damage his case for allowing those claims to proceed.
Lord Donaldson of Lymington MR
[1991] 1 WLR 428, [1991] 3 All ER 559
Limitation Act 1980
England and Wales
Cited by:
Applied – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Cited – Dobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Not followed – Bento v The Chief Constable of Bedfordshire Police QBD 1-Jun-2012
bento_ccbpQBD2012
The claimant had been convicted of the murder of his girlfriend. On his acquittal on appeal, the police criticised the CPS decision not to retry the claimant, in effect, the claimant now said, continuing the accusation against him, and so defaming . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186435

Read v Barton: 26 Jan 1857

A Defendant having several times obtained an extension of time to answer – once upon an affidavit that the answer would be ready in a few days – filed at last a document answering only one immaterial interrogatory, hoping to gain time by driving the Plaintiff to file exceptions for insufficiency. On motion by the Plaintiff this document was ordered to be taken off the file, and the Defendant was made to pay the costs of the motion, and all other costs occasioned to the Plaintiff by filing such an answers.
[1857] EngR 171, (1857) 3 K and J 166, (1857) 69 ER 1066
Commonlii
England and Wales

Updated: 13 October 2021; Ref: scu.289917

Barnett-Waddington Trustees (1980) Ltd and Others v The Royal Bank of Scotland Plc: ChD 12 Apr 2017

Second set of proceedings about a secured loan given to the claimants by the defendant bank. The bank, had discovered an external back to back swap (i.e. with an external counterparty), and asserted that it would be entitled to add the costs of unwinding that swap to the redemption charges. The claimants now said that the bank could no longer make that claim because it is res judicata (as they describe the point) in the sense that it ought to have been raised and dealt with in the first proceedings but was not.
Held: Following the first set of proceedings between the same parties over the same subject matter (a secured loan given to the claimants by the defendant bank), the defendant bank was not entitled to rely on an ‘external swap’ in a second set of proceedings, because to advance such a claim would have been an abuse of process within Johnson v Gore Wood.
Mann J underlined, the point made by Lord Bingham in Johnson v Gore Wood regarding the general applicability of the doctrine of abuse of process to both sides in litigation. After citing Lord Bingham’s speech, Mann J explained that: ‘I have emphasised words which make it plain that the doctrine of abuse involved is capable of applying to defendants and defences as it applies to claimants and claims, though it may be less often invoked against a defendant.’
Mann J
[2017] EWHC 834 (Ch)
Bailii
England and Wales
Citing:
See Also – Barnett Waddington Trustees (1980) Ltd and Another v The Royal Bank of Scotland Plc ChD 14-Aug-2015
Part 8 claim raising a point of construction arising out of a loan agreement.
Held: The unwinding costs of the swap transaction then before him (which was an internal bank swap) could not be added to the redemption cost. . .

Cited by:
Cited – Spicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 October 2021; Ref: scu.581970

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 to the defendant’s competitors in business. The plaintiff had in speeches and letters stated that he had seen a copy of the alleged letter, that two of such letters were in existence in the possession respectively of a firm of bankers and a firm of manufacturers at Birmingham, and that his informant in the matter was a solicitor of high standing at Birmingham. In interrogatories administered by the defendant the plaintiff was asked to state the name and address of his informant, in whose hands he had seen the copy of the letter, and the names and addresses of the persons to whom the letter had been sent, and in whose possession the two letters existed; but he refused to do so on the ground that he intended to call those persons as his witnesses at the trial.
Held: that the defendant was entitled to discovery of the names and addresses of such persons as being a substantial part of facts material to the case upon the issue on the plea of justification.
The right to interrogate although not confined to facts directly in issue, extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.
Lord Esher MR
(1886) 17 QBD 151, [1886] UKLawRpKQB 89
Commonlii
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.416376

Trafigura Beheer Bv v Kookmin Bank Co: ComC 27 Jul 2006

Application for a post-trial anti-suit injunction restraining proceedings brought by the defendant (‘Kookmin’) in Seoul Central District Court.
Field J
[2006] EWHC 1921 (Comm), [2007] 1 Lloyds Rep 669
Bailii
England and Wales
Citing:
See Also – Trafigura Beheer Bv v Kookmin Bank Co ComC 5-Aug-2005
Entitlement to anti-suit injunction. . .
Cited – Trafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.245436

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:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.’
Clarke LJ, Scott Baker LJ
[2003] EWCA Civ 14
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 . .

Cited by:
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
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 – 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 – Spicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.241332

Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited: ChD 27 May 1999

Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that settlement.
Times 19-Jul-1999, [1999] EWHC Ch 229
Bailii
England and Wales
Cited by:
Appeal from – Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another CA 19-May-2000
Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.136036

Gardner v Jay: CA 1885

Bowen LJ said: ‘When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?’
Bowen LJ
(1885) 29 Ch 50
England and Wales
Cited by:
Approved – Evans v Bartlam HL 1937
The House emphasised the width of the jurisdiction to excuse default in the case of a defendant seeking to have a default judgment set aside and to be let in to defend.
Lord Atkin said: ‘The principle obviously is that, unless and until the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653132

Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another: CA 19 May 2000

Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the action against the remaining defendant. In such an action where the claimant had received full compensation the defendant in the second action could seek a contribution from the defendant in the first.
Times 07-Jun-2000, [2000] EWCA Civ 164, [2000] 3 WLR 1341, [2001] Ch 173, [2001] CP Rep 10, [2000] 4 All ER 673, [2000] CPLR 505
Bailii
Civil Liability (Contributions) Act 1978
England and Wales
Citing:
Cited – Jameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Appeal from – Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited ChD 27-May-1999
Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that . .

Cited by:
Appeal from – 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.
Updated: 10 October 2021; Ref: scu.147197

Rex v North; Ex parte Oakey: CA 1927

Proceedings in the Consistory Court were found to be: ‘without jurisdiction’ and prohibition lay.
Scrutton LJ said: ‘In my view an order that anyone shall pay the cost of restoring work which has been obliterated without a faculty is in the nature of a penalty for an ecclesiastical offence, and one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it.’
Lord Justice Atkin observed: ‘I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.’
Lord Justice Atkin, Scrutton LJ
[1927] 1 KB 491
England and Wales
Cited by:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653104

Dowty Boulton Paul Ltd v Wolverhampton Corporation: 1971

An order was sought to require the defendant tenants to keep an airfield open as a going concern.
Held: The order was refused. Pennycuick V-C said: ‘It is very well established that the court will not order specific performance of an obligation to carry on a business.’ and ‘It is unnecessary in the circumstances to discuss whether damages would be an adequate remedy to the company.’
Pennycuick V-C
[1971] 1 WLR 204
England and Wales
Cited by:
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
See Also – Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) 1976
The right to take-off and land airplanes on an airfield enabled the dominant owners to step in and mow the field sufficient to create and maintain runways when the servient owners discontinued its use as an airfield. This was held not to amount to . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.247890

A Local Authority v Mother and Others: FD 5 May 2020

Decision as to whether to proceed with the lay evidence in this case remotely or whether to adjourn the case having heard the medical evidence. I have heard five days of medical evidence remotely through the Zoom platform and, as is explained in more detail below, I adjourned the trial at that point to hear submissions as to whether the hearing should continue with evidence from the parents and other lay witnesses via Zoom. An issue then arose as to the Father’s mental health and, ultimately he asked for an adjournment on the grounds of ill-health rather than specifically the remote hearing aspect of the case.
Lieven J
[2020] EWHC 1086 (Fam)
Bailii
England and Wales

Updated: 10 October 2021; Ref: scu.655236

Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd: HL 1992

A public authority is not required as a rule to give a cross undertaking in damages in a law enforcement action. As to the legal status of the statutory instrument in question, the courts could ‘declare it to be invalid’ if satisfied that the Minister acted outwith his powers conferred by the primary legislation, whether the order was ‘ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects):’ and ‘Under our legal system, however, the courts as the judicial arm of Government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings. Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.’
Lord Goff of Chieveley
[1993] AC 227, [1992] 3 WLR 170
England and Wales
Citing:
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Appeal from – Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd CA 12-Jun-1991
. .

Cited by:
Cited – Worcestershire County Council v Tongue and others ChD 6-Aug-2003
The defendants had been convicted of offences involving mistreatment of animals, and debarred from having custody of animals. They were now in breach of that order, and the council sought a civil order allowing it access to their land to remove any . .
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 – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.186524

Giles v Thompson: CA 1992

The interest that the rule of champerty exists to protect (the individual interest) is that of the opposite party. Steyn LJ described contingency fee agreements as ‘nowadays perhaps the most important species of champerty’ and were ‘still unlawful’. He added that, while champerty had not ‘wither[ed] away’, its ‘scope . . has been shrunk greatly’. The correct question was whether ‘in accordance with contemporary public policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement.’
Steyn LJ
[1993] 3 All ER 321
England and Wales
Cited by:
Appeal from – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – De Crittenden v Bayliss CA 17-Jan-2002
The defendant appealed a judgment saying the arrangement under which the plaintiff had conducted the litigation was champertous.
Held: The appeal failed. ‘[A]lthough some of what Mr De Crittenden did could be described as ‘solicitors work’, . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.223622

Anthony v Halstead: 1877

Where there has been a misdirection in a civil jury trial, it is for the party asserting that the judgment should stand to demonstrate supported by the evidence that any error did not affect the decision reached.
(1877) 37 LT 433
England and Wales
Cited by:
Approved – White v Barnes 1914
. .
Cited – Basham v Gregory and Little Brown and Co CA 2-Jul-1998
The defendant sought a retrial of his action for defamation.
Held: The judge’s directions on meaning as to the respective contentions was correct, and also the allocation of the burden of proof. Whilst the court had reservations about the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.185257

Duchess of Sussex v Associated Newspapers Ltd: ChD 5 Aug 2020

The issue on this application is whether the identity of confidential media sources should be protected from public disclosure. Normally, when such an issue arises it is the claimant who seeks disclosure of the sources. The media invariably maintain that the protection of confidential sources is of high importance, and that names should not be disclosed or publicised. In this unusual case, the roles are reversed. The defendant, a newspaper publisher, wishes to publicise the identities of five media sources, maintaining that their identities are not private or confidential information, or otherwise deserving of protection in fact or law. The claimant is seeking orders to prevent such publicity, relying on evidence – which is unchallenged – that the sources provided information for publication on an express undertaking that they would remain anonymous.
Warby J
[2020] EWHC 2160 (Ch)
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.653023

Times Travel UK Ltd and Another v Pakistan Internation Airlines Corporation: ChD 11 Aug 2020

[2020] EWHC 2440 (Ch)
Bailii
England and Wales
Citing:
See Also – Times Travel (UK) Ltd Nottingham Travel (UK) Ltd v Pakistan International Airlines Corporation ChD 14-Jun-2017
The claimants alleged undue pressure on them by the defendants to enter into contracts to compromise earlier disputes. . .
See Also – Times Travel UK Ltd and Another v Pakistan International Airline Corporation ChD 17-Jul-2018
The court considered, post judgment, directions for the taking of accounts and an application for a variation of the costs order. . .
See Also – Times Travel (UK) Ltd v Pakistan International Airlines Corporation CA 14-May-2019
This appeal concerns the area of lawful act duress, where a contract results from a threat of a lawful act or omission. Does lawful act duress exist at all and, if so, in what circumstances may it be invoked? . .

Cited by:
See Also – Pakistan International Airline Corporation v Times Travel (UK) Ltd SC 18-Aug-2021
Whether, and if so in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 October 2021; Ref: scu.654523