Category: Litigation Practice

Usher v Barlow: CA 1952

A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation because the Comptroller of the Patents Office would not register wall plaques as designs under the Patents and Designs Acts 1907 to 1919. The 1949 Act came into effect on Jan 1 1950. The Board of Trade made rules under that Act which came into operation on 2 January 1950. By rule 26 wall plaques were excluded from registration as designs under the Act. The rules were made pursuant to section 1(4) of the Act which empowered the Board of Trade to make rules excluding from registration, designs for articles which were literary or artistic in character.
Held: The judgment at first instance was upheld.
The reference in s. 22 of the 1911 Copyright Act to the Patents and Designs Acts 1907 to 1919 was ambulatory, and, after the coming into operation of the 1949 Act, to be read as a reference to the 1949 Act. It followed that copyright in the wall plaque subsisted because the 1949 Act and the rules made thereunder prevented the registration of the plaque as a design. It was not then capable of registration.
Lord Evershed MR said that section 37 of the 1889 Act extended to something more than that which was requisite to enable the Act to come into operation at all: it covered such steps as would be required to enable the Act to operate effectively.
Jenkins LJ, with whose judgment Morris LJ agreed, observed that ‘operation’ was used in section 37 in two different senses, namely the sense in which it appeared in the definition of ‘commencement’ and the sense of ‘effective operation’. The section should be construed as extending to whatever was necessary or expedient for the purpose of bringing the Act into effective operation, in the second sense, at the time when it came into operation, in the first sense.
Lord Eversed MR, Jenkins, Morris LJJ
(1952) 69 RPC 27, (1952) 69 RPC 27, [1952] Ch 255, (1952) 69 RPC 27
Copyright Act 1911, Patents and Designs Act 1907 22, Interpretation Act 1889, Registered Designs Act 1949
England and Wales
Cited by:
Cited – Lucasfilm Ltd and Others v Ainsworth and Another CA 16-Dec-2009
The claimants had made several Star Wars films for which the defendants had designed various props items. The parties disputed ownership of the rights in the designs, and in articular of a stormtrooper helmet. The issues came down to whether the . .
Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Cited – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.470871

Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd: ChD 6 Jul 1995

The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing additional damages.
Held: Though some work had been outsourced, the employee remained the author, and his employer retained the copyright as his employer, and therefore infringement had occurred: ‘to have regard merely to who pushed the pen is too narrow a view of authorship. What is protected by copyright in a drawing or a literary work is more than just the skill of making marks on paper or some other medium. It is both the words or lines and the skill and effort involved in creating, selecting or gathering together the detailed concepts, data or emotions which those words or lines have fixed in some tangible form which is protected. It is wrong to think that only the person who carries out the mechanical act of fixation is an author. There may well be skill and expertise in drawing clearly and well but that does not mean that it is only that skill and expertise which is relevant. As Mr Howe has said, where two or more people collaborate in the creation of a work and each contributes a significant part of the skill and labour protected by the copyright, then they are joint authors.’
‘Furthermore it is relevant to bear in mind that there may be considerable skill and expertise involved in attending a public lecture and taking down moderately accurately a speech. Anyone who has attended a trial and has read the daily transcript will marvel at how much clearer the transcript seems to be than what was said in court. This impression is confirmed by comparing the transcript with a tape recording of the proceedings. People frequently speak in half sentences. A good reporter or shorthand writer does more than act as a mere scribe. ‘
Laddie J
[1995] EWHC 7 (Ch), [1995] FSR 818
Bailii
Copyright Designs and Patents Act 1988 97(2)
England and Wales
Citing:
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Walter v Lane HL 6-Aug-1900
Reporter of Public Speech Owns Copyright I
A reporter attended a speech by Lord Rosebery. His report of the speech was republished in the Times after another journalist who had not been present published a verbatim copy. He claimed a copyright in the work he produced.
Held: The first . .
Cited – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .
Cited – King Features Syndicate Inc v O and M Kleeman Ltd ChD 1940
The plaintiff alleging copyright infringement, had relied on fifty five drawings of the Popeye character out of the many thousands of such drawings in the cartoon series. The defendant might have copied from any one of those thousands.
Held: . .
Mentioned – Prior v Lansdowne Press Pty Ltd 1977
In relation to rights of co-owners of copyright the Court cannot add ‘substantial’ before the word ‘copy’ for adjudging infringement of a cinematography film. . .
Mentioned – Murray v King 1983
A receiver had been appointed by the Court to effect a sale of the partnership business. The receiver disposed of assets of the partnership. Sheppard Morling and Spender JJ stated that sale of the copyright by the Receiver pursuant to the terms of . .
Cited – Nichols Advanced Vehicle Systems Inc v Rees 1979
The court considered how to decide whether to award additional damages for flagrancy in copyright breach cases.
Held: Such awards should not be limited to where a defendant was aware of copyright law, but should look to the circumstances of . .
Cited – Polivitte Ltd v Commercial Union Assurance Co Plc 1987
An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise . .
Cited – Re J 1990
Federal Court of Australia – An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion – If an expert’s opinion is not . .

Cited by:
Cited – Anglo Group Plc, Winther Brown and Co Ltd v Winter Brown and Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-Mar-2000
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .
See Also – Cala Homes (South) Ltd and Others v Alfred Mcalpine Homes East Ltd (No 2) ChD 30-Oct-1995
A plaintiff may claim damages under section 97(2) in addition to claiming an account of profits, as his primary remedy. A person claiming joint rights in the copyright as author must contribute to the ‘production’ of the work and create something . .
Cited – Martin and Another v Kogan and Others IPEC 22-Nov-2017
The parties disputed whether joint authorship of the screenplay for a film, ‘Florence Foster Jenkins’. The claimant now sought a declaration of sole authorship of film screenplay, and the defendant cross-claimed for a declaration of joint . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.241586

The Magistrates of Montrose v David Erskine of Dun, Esq One of The Senators of The College of Justice: HL 12 Feb 1738

Process – Appeal – It being objected that the Lord Advocate, who had an interest in the cause, and who had been a party in the Court of Session, was not made a party to the appeal; and that the cause had not been finally determined in the Court of Session; – the appeal was dismissed.
[1738] UKHL 1 – Paton – 222, (1738) 1 Paton 222
Bailii
Scotland

Updated: 01 September 2021; Ref: scu.554683

Kryiakou v Christie’s: QBD 2017

Warby J summarised the five criteria for the grant of a bankers Trust order: there must be good grounds for concluding that the money or assets about which information is sought belonged to the claimant.
whether there is a real prospect that the information sought will lead to the location or preservation of such assets.
the order should, as far as possible, be directed at uncovering the particular assets which are to be traced and the order should not be wider than is necessary in the circumstances.
the interest of the claimant is obtaining the order have to be balanced against the possible detriment to the respondents in complying with the order.
the interest of the claimant is obtaining the order have to be balanced against the possible detriment to the respondents in complying with the order.
Warby J
[2017] EWHC 487 (QB)
England and Wales
Citing:
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .

Cited by:
Cited – Fetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.667436

Banker’s Trust v Shapira: CA 1980

Enforcement through innocent third party bank

Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the use of Norwich Pharmacol procedures in actions where those who have been deprived of property have sought to obtain from banks and others information to enable them to trace the assets. The bank, though involved through no fault of their own in the wrongful acts of others, came ‘under a duty to assist [the plaintiffs] by giving them and the court full information and disclosing the identity of the wrongdoers’, with an important caveat that: ‘This new jurisdiction must of course be carefully exercised. It is a strong thing to order a bank to disclose the state of its customers account and the documents and correspondence relating to it.’ However the court would, if necessary, make a more wide-ranging order.
Lord Denning MR said: ‘The plaintiff who has been defrauded has a right in equity to follow the money. He is entitled, in Lord Atkin’s words, to lift the latch of the banker’s door: see Banque Belge pour l’Etranger v Hambrouck [1921] 1 K B 321, 355. The customer, who has prima facie been guilty of fraud, cannot bolt the door against him. . . If the plaintiff’s equity is to be of any avail, he must be given access to the bank’s books and documents – for that is the only way of tracing the money or of knowing what has happened to it: see Mediterranea Raffineria Siciliana Petroli Spa v Mabanaft GmbH (unreported). So the court, in order to give effect to equity, will be prepared in a proper case to make an order on the bank for their discovery.’
Lord Denning MR
[1980] 1 WLR 1274, [1980] 3 All ER 353
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Approved – A v C (Note) ChD 1980
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to . .
Cited – Banque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
Cited – Upmann v Elkan CA 5-Jun-1871
The defendant freight forwarding agent was innocently in possession of consignments of counterfeit cigars in transit to Germany through a London dock. The action was not for discovery, but for an order restraining the forwarder from releasing the . .

Cited by:
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .
Cited – Kryiakou v Christie’s QBD 2017
Warby J summarised the five criteria for the grant of a bankers Trust order: there must be good grounds for concluding that the money or assets about which information is sought belonged to the claimant.
whether there is a real prospect that . .
Cited – Fetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 August 2021; Ref: scu.272823

Richards v Wood: 21 Mar 1835

The answer of the Lord Chancellor to a petition of appeal relates to the day at which the petition was presented.
Where, therefore, a petition of appeal was presented within twenty-eight days after notice had been given of a docket of the decree having been presented for signature, and, the Lord Chancellor being in Scotland, the petition was not answered until after the expiration of the twenty-eight days, the enrolment of the decree was vacated.
[1835] EngR 591, (1835) 2 My and K 621, (1835) 39 ER 1081
Commonlii
England and Wales

Updated: 30 August 2021; Ref: scu.316099

Twycross v King: 25 Nov 1844

Plaintiff, having delivered a replication to several pleas, concluding to the country as to each plea but traversing one with a special inducement, added the similiters, made up and delivered the issue, and gave notice of trial. Defendant struck out the similiters, and gave notice thereof to plaintiff, But did not deliver a rejoinder or notice of his intetition to rejoin. Afterwards defendant craved oyer of an indenture mentioned in the special inducement, and delivered a rejoinder with a demurrer to the replication containing that inducement, and a similiter as to the rest; and also gave notice that he should not appear on the trial, but should move to set aside any trial bad. Plaintiff proceeded to trial, and obtained a verdict, defendant not appearing. The Court set aside the verdict and trial, with costs.
[1844] EngR 1049, (1844) 6 QB 663, (1844) 115 ER 250
Commonlii
England and Wales

Updated: 29 August 2021; Ref: scu.305641

Barder v Barder; Barder v Caluori: HL 1988

Later Event no ground to appeal from consent order

The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal.
Held: The House described the conditions for appealing an order made by consent. A consent order in an ancillary relief case could be set aside on the ground that there had been a supervening event which had led to such a change of circumstances as to undermine or invalidate the basis of the consent order: ‘new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed . . the new events should have occurred within a relatively short time of the order having been made . . the application for leave to appeal out of time should be made reasonably promptly and third parties should not be adversely affected.’ Lord Brandon reviewed the case law and said: ‘I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934.’
Lord Brandon
[1988] AC 20, [1987] 2 All ER 440, [1987] 2 WLR 1350, [1988] Fam Law 18
England and Wales
Citing:
Cited – Dipple v Dipple 1942
The court considered the abatement of an application for financial relief in divorce proceedings on the death of one party.
Held: The wife’s claim to secured provision was not a cause of action within the terms of section 1(1). The wife only . .
Cited – Mosey v Mosey and Barker 1956
An order had been made against the husband, upon the dissolution of a marriage, securing an annual sum for the maintenance of the wife and their child that was to be agreed upon or referred to the district registrar. The order envisaged contuation . .
Cited – Sugden v Sugden CA 1957
The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim . .
Cited – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .

Cited by:
Approved – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Ram, Regina (on the Application Of) v Parole Board Admn 12-Jan-2004
The claimant had won an action for damages against the respondent. He was however released on licence, and subsequently became unlawfully at large. The question was whether the damages continued to be payable to him. The defendant insisted that the . .
Cited – McGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Heyer v Newby CA 19-Oct-2005
The parties had settled their ancillary relief case by consent, but shortly afterwards, shares in the husband’s company were sold creating a very substantial windfall in his favour. The former wife sought to vary the order. The husband appealed an . .
Cited – Richardson v Richardson CA 8-Feb-2011
Application was made to vary an ancillary relief order on the basis of a Calouri style change of circumstances. . .
Cited – Walkden v Walkden CA 25-Jun-2009
W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.180693

Ryan and Another v Friction Dynamics Ltd and others: ChD 14 Jun 2000

When granting asset freezing orders in support of proceedings in a foreign jurisdiction the court should exercise caution, particularly under the section since the court would not have full knowledge of the issues. Where good grounds existed, and comity required a court to grant an order, the requirements of risk of dissipation, and of a good case must be met; an order might be made even if refused by a foreign court, and the existence of a world-wide order already did not prevent an English court granting a local order.
Times 14-Jun-2000
Civil Jurisdiction and Judgments Act 1982 25
England and Wales

Updated: 29 August 2021; Ref: scu.88941

Clephane and Others v Magistrates of Edinburgh: SCS 30 Oct 1869

This case came before the Court on a petition by the defenders, dated 21st May 1869, to apply the judgment of the House of Lords. The Kirk-session lodged a minute, asserting their interest in the matter, and craving to be sisted as parties to the discussion. This the defenders opposed, on the ground that the ministers had not been parties to the action and the remit of the House of Lords. But the Court held they ought to be sisted.
A scheme of division of the surplus revenue of the Hospital, prepared by the City Accountant as accountant to the Hospital, was lodged in consequence of the decision of the House of Lords, affirming the judgment of the Court of Session, not to build a Hospital, but to expend the surplus revenue in pensions.
There being a difference of opinion as which of various proposed sites was preferable, the Court remitted to Mr Lessels, architect, to examine and report upon the sites. He reported that, if the improvements at Chalmers’ Close were carried out, that site would be the most eligible, but if not, then the Market Street site was next in point of eligibility. To make the Market Street site equally available with the Chalmers’ Close site an extra cost of at least pounds 400 would be required, in consequence of excavations and underbuilding necessitated by the irregularity of the ground, while another sum of pounds 450 would be required for architectural treatment, as the church at Market Street would have three exposed fronts, while that at Chalmers’ Close would have only one. Ireland’s Woodyard would be the worst site. Various objections were urged against the sites by the respective parties; doubt being cast on the sufficiency of the funds, on the one side, and the probability of obtaining the desired site, on the other. After some discussion,
[1869] SLR 7 – 41
Bailii
Scotland
Cited by:
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.576483

Hiscox Underwriting Limited v Dixon: 2004

Arbitration proceedings had been commenced betweeen the parties, and an order was sought under s244.
Held: Without such an order the insurers could suffer substantial losses before the arbitrator could itself make the necessary orders. The defendant argued that the power of the court was restricted to the class of case identified in section 44(3), namely to make ‘such orders as it thinks necessary for the purpose of preserving evidence or assets’. That submission was rejected. Section 44(3) was permissive and not restrictive, and the court has jurisdiction under s44 to grant an interim mandatory injunction. The words ‘the court may’ in 44(3) contrasted with ‘the court shall act only’ in subsections (4) and (5). The draftsman was thought to have good reason for using of such different language and if the draftsman had intended that all three sub-sections should impose similar restrictions, he would have used the same language.
Cooke J
[2004] 2 Lloyd’s Rep 438, [2004] EWHC 479 (Comm)
Arbitration Act 1996 44
England and Wales
Cited by:
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.226185

Su Ling v Goldman Sachs International: ComC 26 Mar 2015

Application for leave to amend particulars of claim.
Carr J set out the principal factors which the court should take into account on an application to amend: ‘a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;’
Carr DBE J
[2015] EWHC 759 (Comm)
Bailii
England and Wales
Cited by:
Cited – Jones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.544864

Argo Systems FZE v Liberty Insurance (PTE) and Another: ComC 21 Feb 2011

Mackie QC HHJ
[2011] EWHC 301 (Comm), [2011] 1 All ER (Comm) 1111, [2011] 2 Lloyds Rep 61, [2011] 1 CLC 341
Bailii
England and Wales
Cited by:
Appeal from – Liberty Insurance Pte Ltd and Another v Argo Systems Fze CA 15-Dec-2011
‘Saying nothing and ‘standing by’, ie. doing nothing, are, to my mind, equivocal actions. This court has stated that, in the absence of special circumstances, silence and inaction are, when objectively considered, equivocal and cannot, of . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.430496

Tinkler and Another v Elliott: QBD 15 Mar 2012

The defendant, subject to a civil restraint order, sought leave to appeal against judgment entered against him in his absence.
Sharp J
[2012] EWHC 600 (QB)
Bailii
England and Wales
Citing:
See Also – Tinkler and Another v Elliott CA 7-Jul-2011
Application for leave to appeal. Litigant in person failing to understand CPR. Leave granted. . .

Cited by:
Appeal from – Tinkler and Another v Elliott CA 10-Oct-2012
The claimant was a litigant in person who said that he had misunderstood the relevant provision of the CPR.
Maurice Kay LJ said: ‘I accept that there may be facts and circumstances in relation to a litigant in person which may go to an . .
See Also – Tinkler and Another v Elliott CA 7-May-2014
The defendant appealed against permission given to the claimant to bring allegations of contempt of court. The claimant was acting in person. . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.452162

Frank v Basnett: 21 Mar 1835

An action brought after a decree, upon the subject-matter referred to the Master, and pending the proceedings in his office, will be restrained, upon motion, by special injunction ; and if a supplemental bill be filed, praying such injunction, it is not necessary to obtain in the first instance the common injunction.
[1835] EngR 590, (1835) 2 My and K 618, (1835) 39 ER 1080
Commonlii
England and Wales

Updated: 28 August 2021; Ref: scu.316098

Hiscox Underwriting Ltd and Another v Dickson Manchester and Co Ltd and Another: ComC 5 Mar 2004

‘ application for an order that the defendants . . give access to the claimants . . to various documents in their possession which they hold by virtue of being underwriting agents under a binding authority agreement.’
Cooke J
[2004] EWHC 479 (Comm), [2004] 1 All ER (Comm) 753, [2004] 2 Lloyd’s Rep 438, [2004] 2 LLR 438
Bailii
England and Wales

Updated: 28 August 2021; Ref: scu.467271

Arab Monetary Fund v Hashim: HL 1991

Lord Templeman said: ‘passages extracted and amassed from a lengthy speech deal with different issues and different facts’.
Lord Templeman
[1991] 1 AC 114
England and Wales
Cited by:
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.230264

Stanway v Attorney-General et al: ChD 25 Nov 1999

Where a defendant had brought a counter-claim against his co-defendants but had restricted that claim to issues raised already by the claim against himself, he was not to be prevented from commencing fresh proceedings against the co-defendants where the issues raised had not been dealt with in the first proceedings. The rules against relitigating issues were not being broken.
Times 25-Nov-1999
England and Wales
Cited by:
Appeal from – Stanway v Attorney-General CA 5-Apr-2000
Sir Richard Scott V-C said: ‘Charities operate within a framework of public law, not private law. The Crown is parens patriae of the charity and the judges of the courts represent the Crown in supervising what the charity is doing and in giving . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.89494

Kleinwort Benson v City of Glasgow District Council: ECJ 28 Mar 1995

ECJ The function of the Court, as envisaged by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, is that of a court whose judgments are binding on the national court. That function would be altered if the replies given by the Court to the courts of the Contracting States were permitted to be purely advisory and without binding effect.
However, that would be the case if the Court were to declare that it had jurisdiction to provide interpretation of the Convention requested of it by a national court before which proceedings are pending and to which not the Convention but national legislation is applicable, where that legislation takes the Convention as a model, by reproducing certain of its provisions but without incorporating them as such into the domestic legal order, and expressly providing for the possibility of adopting modifications in order to produce divergence in relation to Convention provisions as interpreted by the Courts, and where that legislation merely requires national courts in applying the Convention provisions to have regard to the Court’s interpretation of the corresponding provisions of the Convention without giving binding effect to that interpretation.
For that reason the Court does not have jurisdiction to give a preliminary ruling on a question arising in such a context.
Times 17-Apr-1995, C-346/93, [1995] EUECJ C-346/93, [1995] ECR I-615
Bailii
European

Updated: 24 August 2021; Ref: scu.161171

Abrath v North Eastern Railway Company: CA 22 Jun 1883

A claim was brought against the company for malicious prosecution. The jury acquitted it. And the plaintiff appealed.
Held: The judge’s direction had been correct.
Bowen LJ said: ‘Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent . . that is an averment which he is bound to prove positively.’
. . And ‘If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to explain to the jury about onus of proof, unless there are presumptions of law, such as, for instance, the presumption of consideration for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is Yes or No, or else they cannot tell what to say. If the jury cannot make up their minds upon a question of that kind, it is for the judge to say which party is entitled to the verdict. I do not forget that there are canons which are useful to a judge in commenting upon evidence and rules for determining the weight of conflicting evidence; but they are not the same as onus of proof. Now in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms ‘negative ‘ and ‘ affirmative’ are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game laws may be explained on special grounds come back to the question of the present trial, it is possible that the language of Cave, J., has been misunderstood; and must look and see out of the ways in which the question might possibly be tried, which way he has selected, because as soon as it is seen which mode of trial he has selected a great advance is made towards seeing that the criticisms which have been made on his direction are unsound. A judge may leave the jury to find a general verdict, explaining to the jury what the disputed facts are, telling them that if they find the disputed facts in favour of one side or the other, his opinion as to reasonable and probable cause will differ accordingly, telling them what, in each alternative, his view will be, and enabling them to apply that statement with reference to the issue as to malice; that is a way which in a very simple kind of case may be adopted. But I think it necessary only to state as much as I have stated about it, to see that a very clear head and a very clear tongue will be required to conduct a complicated case to a general verdict in that way. Accordingly, judges have, been in the habit of adopting a different course whenever there are circumstances of complication. A judge may accordingly, do this; he may tell the jury what the issues or questions are, and at the same time inform them what will be the effect upon the verdict, which they will ultimately be asked to find, of the answers they give to the specific questions, leaving the jury both to answer the questions and then to find a verdict, after he has explained to them what result the answers to the questions will involve. That is the way in which Cave, J. really did try this case. There is a third way in which a judge may conduct the trial, by asking the jury specific questions, and not leaving it to them to find the verdict, but entering the: judgment upon their findings himself. That is a third way, and that was not adopted in form by the learned judge, although it will be observed it differs only slightly in form from the second mode of procedure, which he, in fact, did adopt. Now, if the judge adopts the second method of procedure, it is obvious that he is putting specific questions to the jury with the intention, as soon as they have answered the specific questions, to request them to go still further, and to find a general verdict one way or the other on such answers.’
Lord Brett MR said that any party wishing to assert a negative proposition bears the onus of proving that negative.
Bowen LJ, Lord Brett MR
[1883] 11 QBD 440, [1883] UKLawRpKQB 122
England and Wales
Cited by:
Appeal from – Abrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.565827

Libyan Investment Authority v Societe Generale Sa and Others: ComC 18 Dec 2020

Application of the LIA to lift the restriction against collateral use in respect of 30 documents that the first to fourth defendants previously disclosed in these proceedings. The LIA sought the court’s permission pursuant to CPR 31.22 for it to use those 30 documents for certain purposes in its separate claim which it has issued against Credit Suisse International and Others.
[2020] EWHC 3659 (Comm)
Bailii
England and Wales

Updated: 21 August 2021; Ref: scu.657610

R (A Child), Re; Birmingham City Council v LR and other: CA 20 Dec 2006

The court considered whether it could continue with an appeal where the practical issues had been resolved.
Held: ‘Mr. Harrison explained that the appeal was being brought by the local authority as a ‘test case’ to obtain clear guidance urgently needed from this court concerning the interpretation of statutory provisions relating to the special guardianship procedures. The Appellant was a major local authority with a substantial case load of litigated child care cases. It had a legitimate interest in bringing proceedings to obtain clarification of provisions and procedures affecting an increasing number of cases.
Mr. Harrison submitted, accordingly, that a point of principle was involved. Due to the importance of the points which arose, therefore, Mr. Harrison invited us to rule on them.
Having heard further argument and considered the matter, we came to the conclusion that we would hear the appeal. We did so because we accepted that the points raised in this appeal are important and would be likely to arise again in any event. In practical terms, counsel on all sides had come to court prepared to argue the appeal. We accept, furthermore, that the local authority was taking a principled stance by implementing paragraph 4 of the judge’s order whilst, at the same time, seeking permission to appeal against it. Having heard full argument, we reserved judgment.’
Thorpe, Tuckey, Wall LJJ
[2006] EWCA Civ 1748, [2007] 2 WLR 1130, [2007] Fam 41, [2007] 1 FCR 121, [2007] 1 FLR 564
Bailii
England and Wales
Cited by:
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
rolls_uniteCA2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.278315

Cardile v LED Builders PTY Limited: 1999

(High Court of Australia) The respondent (‘LED’) twice sought relief from Eagle Homes PTY Limited (‘Eagle’) for copyright infringement. Anticipating the proceedings the only shareholders and controllers of Eagle, the claimants arranged the declaration and payment of a dividend to them by Eagle of $400,000, and after the hearing of the infringement actions in March 1996, but before judgment in July, a similar payment of a further dividend of $658,977.12, again intenting to put Eagles assets beyond the reach of LED. LED obtained freezing orders against Mr and Mrs Cardile, and they sought to have them set aside on appeal on the grounds that there was no case against them of receipt and retention of any property of Eagle, nor any other basis for the grant of a freezing order against them in favour of LED.
Held: The court undertook a comprehensive review of the nature and rationale of the jurisdiction to grant interim relief and freezing orders based largely on English authority which included reference to the Aiglon case. The court set out principle determining whether Mareva relief should be granted in relation to the activities of third parties: ‘What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word ‘may’, be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which:
(i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’ , of the judgment debtor or potential judgment debtor; or
(ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.’
Applying that statement of principle to Mr and Mrs Cardile, the majority concluded that there were two bases upon which the court had jurisdiction to grant a freezing order against them on the application of LED. The first was that it was arguable that the declaration and payment of the dividends was an alienation of property with intent to defraud creditors, voidable at the instance of any person thereby prejudiced, within the meaning of section 37A of the Conveyancing Act, sufficient to give LED a direct cause of action against Mr and Mrs Cardile as a person thereby prejudiced.
The second basis was that the declaration and payment of both dividends were voidable transactions within the meaning of Part 5.7B Divider 2 of the Corporations Law, and therefore liable to be set aside on application by a liquidator appointed at the instance of LED by way of enforcement of a quantified judgment for damages at the conclusion of its infringement proceedings. As they put it in paragraph 69 of their judgment: ‘A liquidator probably appointed on the initiative of LED but acting on behalf of all creditors, would be entitled to pursue and recover those funds’ (meaning the dividends).
Kirby J: ‘To secure an asset preservation order in a case such as the present, it will be necessary for the party seeking it to show, in addition to the conditions ordinary to the grant of relief injunctive in nature that (1) there is a danger that the non-party will dispose of relevant assets or property in its possession or under its control; and (2) that the affairs of the actual or potential judgment debtor and the non-party are closely intermingled and that the actual or potential judgment creditor has a vested or accrued cause of action against the non-party or may otherwise become entitled to have recourse to the non-party, its property and assets to meet the claim. Clearly, on the preliminary findings made by the primary judge, these preconditions were established in the present case.’
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
[1999] HCA 18
HCA
Australia
Cited by:
Cited – C Inc Plc v L and Another QBD 4-May-2001
The plaintiff had obtained judgment against L, only then to find that she claimed that all only apparent assets were held by her on trust for or as agent for her husband who was overseas. The plaintiff therefore now set out to add him, and to claim . .
Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.245163

In re F (Mental Patient: Sterilisation): HL 4 May 1989

Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been competently given, provided the treatment was a necessity and did no more than was reasonably required in the best interests of the patient.
The parent of a mentally-disabled adult had no power at common law to consent to a medical operation on her behalf.
Lord Brandon said: ‘The application of the principle which I have described means that the lawfulness of a doctor operating on, or giving other treatment to, an adult patient disabled from giving consent, will depend not on any approval or sanction of a court, but on the question whether the operation or other treatment is in the best interests of the patient concerned. That is, from a practical point of view, just as well, for, if every operation to be performed, or other treatment to be given, required the approval or sanction of the court, the whole process of medical care for such patients would grind to a halt.’ and ‘although in the case of an operation of the kind under discussion involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice.’ and
‘a doctor can lawfully operate on, or give other treatment to , adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health.’
Lord Goff of Chieveley: ‘every person’s body is inviolate.’ Lord Goff discussed the doctrine of necessity within the context of the law of tort: ‘That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man’s property in the public interest – for example (in the days before we would dial 999 for the fire brigade) the destruction of another man’s house to prevent the spread of catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another’s property to save his own person or property from imminent danger – for example, when he entered upon his neighbour’s land without his consent, in order to prevent the spread of fire onto his own land.’
As to the court’s jurisdiction to make declaratory judgments: ‘indeed there is authority in the English cases that a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument . . . In the present case, however, none of these objections exists. Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper interest in the outcome, so that it can properly be said that she is seeking relief . . . The matter has been fully argued in court . . . I wish to add that no question arises in the present case regarding future rights: the declaration asked relates to the plaintiff’s position as matters stand at present.’
Lord Brandon, Lord Goff of Chieveley
[1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, CA and HL(E)
Bailii
Mental Health Act 1983
England and Wales
Cited by:
Cited – Ms B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
Cited – Airedale NHS Trust v Bland FD 19-Nov-1992
The patient had suffered catastrophic injuries in 1989, leaving him in a persistent vegetative state (PVS). The doctors sought leave to discontinue life maintaining treatment and medical support. The inevitable result would be his death. The . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Followed – Re SG (adult mental patient: abortion) FD 1991
Her GP and a consultant gynaecologist had recommended a termination for a pregnant, severely mentally handicapped 26 year old woman. Following Re F, her father sought a formal declaration of the court was required before any termination.
Held: . .
Cited – Re GF (medical treatment) FD 1992
It was not necessary for doctors to apply to the court for a declaration authorising a sterilisation procedure for an inpatient in a mental hospital, if two medical practitioners are satisfied that (1) the procedure is necessary for therapeutic . .
Cited – An NHS Trust v D (Medical Treatment: Consent: Termination) FD 28-Nov-2003
The defendant had been admitted to hospital under the 1983 Act and found to be pregnant. The doctors sought an order permitting an abortion. An order had been made, but the parties invited the court to say whether a court order was required at all. . .
Cited – In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A FD 27-Nov-2003
The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain . .
Cited – An Hospital NHS Trust v S (By her Litigation Friend the Official Solicitor) And DG (S’s Father) and SG (S’s Mother) FD 6-Mar-2003
The hospital sought a declaration that it had no obligation to provide a kidney transplant to an eighteen year old youth who had had very severe disabilities since birth. It was argued that his mental condition meant that he would be unable to cope . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2021; Ref: scu.180314

Abela and Others v Baadarani: SC 26 Jun 2013

The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service abroad, and then on finding the address to be incorrect, had served at an office of their lawyers, claiming good service, which was now denied. The claimants sought retrospective permission to do so.
Held: The claimants’ appeal succeeded, and the declaration that the service had been valid was restored. The steps they had taken to bring the claim form to the attention of the defendant namely the delivery of an untranslated copy to the offices of his Lebanese attorney, in circumstances where they had been unable to locate the defendant in Lebanon, should be treated as good service upon him under CPR.
(1) The test is whether, ‘in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service’.
(2) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served (para 37). This is therefore a ‘critical factor’. However, ‘the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)’.
(3) The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
(4) Endorsing the view of the editors of Civil Procedure (2013), vol i, para 6.15.5, Lord Clarke pointed out that the introduction of a power retrospectively to validate the non-compliant service of a claim form was a response to the decision of the Court of Appeal in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121; (2001) CP Rep 71 that no such power existed under the rules as they then stood. The object was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served.
Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 44, [2013] 4 All ER 119, [2013] ILPr 40, [2013] WLR(D) 251, [2013] 1 WLR 2043, UKSC 2012/0023
Bailii, WLRD, Bailii Summary, SC Summary, SC
Civil Procedure Rules 6.15(2)
England and Wales
Citing:
Cited – The Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
Cited – VTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Appeal from – Abela and Others v Baadarani CA 15-Dec-2011
The claimant alleged fraud against the defendant. The defendant now appealed against an order allowing service of the proceedings on him in Lebanon. . .
Cited – Bacon v Automattic Inc and Others QBD 6-May-2011
The court was asked whether a defendant domiciled in the United States of America be served by means of email with a claim form issued in England. . .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
At first instance – Abela and Others v Baadarani and Another ChD 28-Jan-2011
The claimant sought damages alleging inter alia fraud by the defendant in a company sale between the parties. The defendant now sought to have set aside the service on him in Lebanon, saying that The English court was not the forum coveniens. He . .
Cited – Karafarin Bank v Mansoury-Dara ComC 4-Jun-2009
The Defendant applied to stay the proceedings on the grounds that there were concurrent proceedings in Iran or, in the alternative, that the proceedings be stayed pending the conclusion of the concurrent proceedings in Iran.
Held: Teare J . .
Cited – Antec International Ltd v Biosafety USA Inc QBD 27-Jan-2006
The defendant applied to set aside an order giving leave to serve abroad in a contractual claim where the contract contained a non-exclusive jurisdiction clause.
Held: summarised the effect of such a clause, as the law emerged from extensive . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Knauf UK GmbH v British Gypsum Ltd and Another CA 24-Oct-2001
Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he . .
Cited – Olafsson v Gissurarson (No 2) CA 3-Mar-2008
The defendant appealed against an order that service of the claim form could be dispensed with.
Sir Anthony Clarke MR said: ‘the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the . .
Cited – Bayat Telephone Systems International Inc and Others v Lord Michael Cecil and Others CA 18-Feb-2011
Rix LJ suggested that it may be that orders permitting alternative service are not unusual in the case of countries with which there are no bilateral treaties for service and where service can take very long periods of up to a year. . .

Cited by:
Cited – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.511083

Valbonne Estates Ltd v Cityvalue Estates Ltd and Another: CA 30 Jun 2021

This appeal concerns the proper exercise of the court’s discretion to continue a pre-action interim injunction or to re-grant it, notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis.
Lady Justice Asplin
[2021] EWCA Civ 973
Bailii, Judiciary
England and Wales

Updated: 16 August 2021; Ref: scu.663473

Shepherd Homes Ltd v Sandham: ChD 1970

In the context of an interlocutory application for an enforcing a mandatory injunction, Megarry J said: ‘on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.’
Megarry J. spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: ‘they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and make it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.’
Megarry J
[1971] Ch 340, (1970) 3 All ER 402
England and Wales
Cited by:
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
Cited – Zockoll Group Ltd v Mercury Communications Limited CA 27-Aug-1997
The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.346206

National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica): PC 28 Apr 2009

Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the absence of express contrary agreement or statutory impediment, a contract by a bank to provide banking services to a customer is terminable upon reasonable notice. It was wrong to approach requests for mandatory injunctions with a box-ticking approach, and ‘Factors which the court might have taken into account in this case if there had been a triable issue were, first, that the injunction required the bank to continue against its will to provide confidential services for the plaintiffs; secondly, that the injunction would require the bank to continue to incur reputational risks and possible exposure to legal action; thirdly, that it was by no means clear that the plaintiffs would be able to satisfy a claim under the cross-undertaking in damages; fourthly, that the plaintiffs’ case was, even if not (as their Lordships think) hopeless, certainly very weak, and fifthly, that the plaintiffs could no doubt have obtained alternative banking services from any bank whom they could persuade that they were not running a fraudulent scheme.’
Lord Hoffmann said in relation to interlocutory injunctions: ‘The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result. As the House of Lords pointed out in American Cyanamid Co v Ethicon Ltd [1975] AC 396, that means that if damages will be an adequate remedy for the plaintiff, there are no grounds for interference with the defendant’s freedom of action by the grant of an injunction. Likewise, if there is a serious issue to be tried and the plaintiff could be prejudiced by the acts or omissions of the defendant pending trial and the cross-undertaking in damages would provide the defendant with an adequate remedy if it turns out that his freedom of action should not have been restrained, then an injunction should ordinarily be granted.
In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in the American Cyanamid case [1975] AC 396 , 408: ‘It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.’ ‘
Lord Hoffmann also discussed the making of ex parte applications: ‘there appears to have been no reason why the application for an injunction should have been made ex parte, or at any rate, without some notice to the bank. Although the matter is in the end one for the discretion of the judge, audi alterem partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. These two alternative conditions are reflected in rule 17.4(4) of the Supreme Court of Jamaica Civil Procedure Rules 2002. Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.’
Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance
[2009] UKPC 16, Times 06-May-2009, [2009] 1 WLR 1405
Bailii
England and Wales
Citing:
Cited – Shepherd Homes Ltd v Sandham ChD 1970
In the context of an interlocutory application for an enforcing a mandatory injunction, Megarry J said: ‘on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Films Rover International Ltd v Cannon Film Sales Ltd 1987
The grant of an interlocutory injunction, whether prohibitory or mandatory, depends on what is sometimes called the balance of convenience but is more accurately an assessment of whether granting or withholding the injunction at that stage is more . .

Cited by:
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Cited – Jeeg Global Ltd v Hare QBD 29-Mar-2012
The claimant had obtained an order restricting the defendant from asserting any kind of insolvency in the claimant. The defendant now sought the strike out of the claim as an abuse of process. He said that any such disclosure had been on one . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.341819

Zockoll Group Limited v Mercury Communications Limited: CA 8 Jul 1997

Philips LJ
[1998] FSR 354, [1997] EWCA Civ 2053
England and Wales
Citing:
Approved – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .

Cited by:
See Also – Zockoll Group Ltd v Mercury Communications Limited CA 27-Aug-1997
The plaintiffs appealed against refusal of an interlocutory injunction restraining the Defendants, ‘Mercury’ from withdrawing from Zockoll the use of a particular telephone number, 0500 354448. Immediately upon that Order being made, Mercury . .
Cited – Chambers v British Olympic Association QBD 18-Jul-2008
The claimant, a former Olypmic sprinter had now competed a ban after being found to have taken banned drugs. He had returned to the sprort but now challenged the policy of the respondent not to allow for consideration of the Olympic team, athletes . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.142450

Standard Chartered Bank v Pakistan National Shipping Corporation, Seaways Maritime Ltd, SGS United Kingdom Ltd, Oakprime International Ltd, Arvind Mehra (No 2): CA 27 Jul 2000

Where a deceit was established leading to an award of damages, that award of damages was not capable of being reduced under the 1949 Act through a contribution to the loss occasioned by the claimant’s own behaviour, where that behaviour did not fall under the heads of contribution recognised by the Act.
The fourth defendants, Oakprime Limited (O), chartered to transport their cargo of bitumen. O had persuaded the shipowners, Pakistan National Shipping Corporation, to authorise signature of bills of lading which O knew to be false. O presented the bills of lading to Standard Chartered Bank in order to obtain payment under letters of credit. A question on the appeal was whether the third defendant, Mehra, a director of O, was personally liable for the false representations made to the Bank. The judge had held that he was, on the ground that he had authorised, directed and procured the acts complained of with full knowledge that those acts were tortious.
Held: The appeal succeeded, because although M was the person who was responsible for making the misrepresentations, he did not commit the deceit himself; the representations were made by O and the Bank relied upon them as representations by Oakprime and not as representations made by M. The Court went on to consider whether it had been open to the judge to hold that M was liable as a joint tortfeasor for authorising and procuring the misrepresentations. Lord Justice Aldous saw three circumstances in which a director or employee, acting as such, would be liable for tortious acts committed during the course of his employment. First, where the director or employee commits the tort himself. Lord Justice Aldous gave as an example the lorry driver who is involved in an accident in the course of his employment. Second, where the director or employee, when carrying out his duties for the company, assumes a personal responsibility. Lord Justice Aldous gives Williams v Natural Life Health Foods Ltd as an example of a case where alleged liability on that ground failed on the facts. Third, where the director does not carry out the tortious act himself, nor does he assume liability for it, but he procures and induces another, the company to, commit the tort. Lord Justice Aldous: ‘A person who procures and induces another to commit a tort becomes a joint tortfeasor (see Unilever Plc v Gillette (UK) Limited [1989] RPC 583 and Molnlycke AB v Procter and Gamble Ltd [1992] RPC 583). There is no reason why a director of a company should be in any different position to a third party and therefore it is possible that a director can be capable of becoming a joint tortfeasor by procuring and inducing the company, for which he works, to carry out a tortious act. However there are good reasons to conclude that the carrying out of duties of a director would never be sufficient to make a director liable. That was the view of the Court of Appeal in C Evans v Spritebrand Ltd [1985] 1 WLR 317.’ and ‘ . . public policy requires that the Courts will not lend their aid to a man who founds his action upon an immoral or illegal act. The action will not be founded upon an immoral or illegal act, if it can be pleaded and proved without reliance upon such an act. . . The fact that damage may not have resulted but for a decision to deceive is irrelevant to the cause of action when pleaded and proved.’
Aldous LJ,Ward LJ
Times 03-Oct-2000, [2000] EWCA Civ 230, [2000] 1 Lloyds Rep 218
Bailii
Law Reform (Contributory Negligence) Act 1945 1(1)
England and Wales
Citing:
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .

Cited by:
Cited – Sweetman v Nathan and others CA 25-Jul-2003
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.147263

Pittalis v Sherefettin: CA 1986

On the day after the judge had given judgment in a county court, he decided that he had been wrong. The judge provided the party with grounds upon which he would, if not persuaded otherwise, alter his previous judgment and order. A further hearing was fixed at which counsel made further submissions. In the course of his further judgment, the judge said that, within minutes of delivering his first judgment, he was sure that his decision was wrong and that he remained of that view. The plaintiff landlords appealed against the altered decision.
Held: The circumstances here where exceptional.
There was no requirement of a clause requiring or allowing an election for arbitration to be mutual. Fox LJ said ‘There is a fully bilateral agreement which constitutes a contract to refer. The fact that the option is exercisable by one of the parties only seems to me to be irrelevant. The arrangement suits both parties . . the landlord is protected, if there is no arbitration, by his own assessment of the rent as stated in his notice: and the tenant is protected, if he is dissatisfied with the landlord’s assessment of the rent, by his right to refer the matter to arbitration. Both sides have, therefore, accepted the arrangement and there is no lack of mutuality.’
Dillon LJ said: ‘An order pronounced in open court, or implicit in a judgment pronounced or handed down in open court, may be recalled or varied before it has been perfected by the sealing of a written order: ‘it is indeed exceptional for a judge who has pronounced an order in open court to be completely satisfied, before the order has been drawn up, registered or perfected, that the order was wrong.’
Fox LJ, Dillon LJ
[1986] QB 868, [1986] 2 WLR 1003, [1986] 2 All ER 227
England and Wales
Citing:
Applied – Millensted v Grosvenor House (Park Lane) Ltd CA 1937
For the negligence of the hotel in upsetting a jug of hot water over her, the judge awarded damages of pounds 50 to the plaintiff, but on the following day, without further argument on that point, he informed the parties that his award had been . .

Cited by:
Cited – NB Three Shipping Ltd. v Harebell Shipping Ltd ComC 13-Oct-2004
Under charterparty agreements, certain disputes were to be referred to arbitration. The claimant sought to pursue a dispute before the court.
Held: The lack of mutuality on the arbitration clause did not prevent its validity. The party had the . .
Cited – Read v Edmed QBD 8-Dec-2004
The claimant had offered to accept damages subject to a 50% finding of contributory negligence. The defendant did not accept. That was the exact order made. The claimant appealed refusal to award her costs on the standard basis to the time for . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.216403

Gingell v Bean: 12 May 1840

Although the general practice may be for one party to the suit to draw up a rule obtained in the progress of a cause, if the other party wishes to act upon it, he should draw it up within the time to which it relates; for if not drawn up within such period, it is to be considered as having been abandoned. Where the defendant, in Hilary term, obtained a rule nisi for judgment as in case of a nonsuit, which was discharged on the plaintiffs agreeing to give a peremptory undertaking to try at the sittings after the term, but the rule containing the peremptory undertaking was not drawn up until the 13th of March, which was after the time to which it referred had expired, and the defendant in Easter term obtained a rule absolute in the First instance for judgment as in case of a nonsuit, the Court set such judgment aside for irregularity.
[1840] EngR 594, (1840) 1 Man and G 50, (1840) 133 ER 243
Commonlii
England and Wales
Citing:
Cited – Peters v Fleming 1840
The plaintiff sought a declaration as to goods sold. The defendant pleaded his infancy. The plaintiff pleaded that the goods were necessaries appropriate to the state and condition of the defendant.
Held: The term ‘necessaries’ included those . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.310020

Millensted v Grosvenor House (Park Lane) Ltd: CA 1937

For the negligence of the hotel in upsetting a jug of hot water over her, the judge awarded damages of pounds 50 to the plaintiff, but on the following day, without further argument on that point, he informed the parties that his award had been excessive and would be only pounds 35. She appealed.
Held: Until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered.
Farwell J gave guidance as to what a judge should do on mistakenly being informed of a payment into court: ‘The purpose of the order is obvious, it was made to prevent the premature disclosure of a fact which was not relevant to the issues to be tried, but the disclosure of which might prejudice one or more of the parties to the proceedings. It is to be noticed, that the order makes no express provision for the event of an infringement of the rule. It is, of course, the duty of both judge and counsel to observe the rule, but what is to be done if the rule by inadvertence or otherwise is broken? In my judgment, this is in every case a matter for the trial judge to determine, having due regard to the object for which the rule was made. If he thinks it proper or necessary for the due administration of justice, he may refuse to hear the action any further and direct it to be tried before another tribunal. On the other hand, if he is satisfied that no injustice will be done, he may allow the matter to proceed and if he adopts the latter course, that in itself affords no ground for an appeal from the order which is ultimately made.’
Farwell J
[1937] 1 KB 717, [1937] 1 All ER 736
England and Wales
Cited by:
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Applied – Pittalis v Sherefettin CA 1986
On the day after the judge had given judgment in a county court, he decided that he had been wrong. The judge provided the party with grounds upon which he would, if not persuaded otherwise, alter his previous judgment and order. A further hearing . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.464844

Zavarco Plc v Nasir: CA 5 Aug 2021

whether the doctrine of merger, whereby a judgment on a cause of action precludes a new action for further relief on the same cause of action, applies where the judgment is for declaratory relief only.
Sir David Richards
[2021] EWCA Civ 1217
Bailii
England and Wales

Updated: 14 August 2021; Ref: scu.666490

TN v First-Tier Tribunal and East Sussex County Council: UTAA 19 Apr 2021

Tribunals, Courts and Enforcement Act s.11(5)(d) and 11(1) mean that a challenge to a refusal to review on the ground of change of circumstances under r.48 of the First-tier Tribunal (Health, Education and Social Care) Rules has to be brought by way of application to the Upper Tribunal for judicial review and not as an appeal. 2. The test of whether ‘circumstances relevant to the decision have changed’ does not require, in order to meet the threshold condition for a review, the applicant to establish that the changed circumstances would have affected the decision. Nor is it a pre-condition that the changed circumstances relate to a matter expressly addressed in the Education Health and Care Plan. R(EL and JB) v FtT and Surrey CC [2020] UKUT 4 (AAC) applied.
[2021] UKUT 98 (AAC)
Bailii
England and Wales

Updated: 13 August 2021; Ref: scu.666406

Walter Lilly and Company Ltd v Mackay and Another: TCC 15 Mar 2012

The claimant sought disclosure of papers prepared on behalf of the defendant by a claims consultant, who in turn asserted a privilege from production akin to that of a legal professional.
Akenhead J
[2012] EWHC 649 (TCC), 141 ConLR 102, [2012] BLR 249, [2012] 6 Costs LO 809
Bailii
England and Wales

Updated: 12 August 2021; Ref: scu.452425

In Re K (Infants): CA 2 Jan 1963

The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.’
Devlin L set out: ‘ the fundamental principle of justice that the judge should not look at material that the parties before him have not seen.’
Upjohn LJ
[1963] Ch 381
England and Wales
Citing:
Appeal from – In re K (Infants) ChD 1963
Ungoed Thomas J discussed the balance of interests in a wardship case, as it affected disclosure of documents: ‘However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not . .

Cited by:
Appeal from – In Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Murungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
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: 12 August 2021; Ref: scu.228358

Re K (Enduring Powers of Attorney), In re F: ChD 1988

The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself incapable by reason of mental disorder of managing her property and affairs at the time that she executed the power. For a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act. In the context of litigation, the test to be applied is: ‘whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.’ There is no logical reason why a person who understands that something needs to be done, but who does not have the requisite understanding to do it for himself, should not confer on another the power to do what needs to be done.
Hoffmann J said: ‘there is no logical reason why, though unable to exercise her powers, [the donor] could not confer them upon someone else by an appropriate juristic act. The validity of that act depends on whether she understood its nature and effect and not on whether she would hypothetically have been able to perform all the acts which it authorised.’ and
‘I do not think that it would be sufficient if he realised only that it gave Cousin William power to look after his property. Mr Rawson [counsel instructed by the Official Solicitor] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor’s affairs. Secondly (if such be the terms of the power) that the attorney will in general be able to do anything with the donor’s property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept Mr Rawson’s summary as a statement of the matters which should ordinarily be explained to the donor (whatever the precise language which may be used) and which the evidence should show he has understood.’
Hoffmann J
[1988] Ch 310
England and Wales
Cited by:
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.219623

Weinberger v Inglis: ChD 1918

The plaintiff (who had been born in Germany) applied to become a member of the London Stock Exchange. The committee of the Stock Exchange, in the exercise of their discretion, refused the application. The plaintiff brought proceedings challenging that refusal and he alleged in his statement of claim that the committee did not exercise their discretion in a bona fide way. It had been established that there was a presumption that the committee of the Stock Exchange acted in a bona fide way and that the onus of rebutting this presumption lay upon a party who wished to challenge the decision of the committee. The plaintiff alleged that the committee did not exercise any discretion either bona fide , fairly, reasonably or judicially, but had acted arbitrarily. In their defence, the committee traversed each of the allegations made in the statement of claim. In addition it was specifically alleged that the committee, acting bona fide and honestly in the exercise of their duty and discretion under the Stock Exchange rules decided not to admit the plaintiff to membership of the exchange. The plaintiff sought particulars of the defence (including particulars of the allegations made). Among the particulars sought by the plaintiff were the facts and grounds on which the committee based their decision.
Held: The application for an order compelling the defendants to furnish the particulars was refused. Astbury J identified the rationale underlying the principle: ‘As a general rule the Court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed, and this is especially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him.’ He reiterated the same point in these terms: ‘Under Order XIX r. 7, further particulars may be ordered of any matter ‘stated’ in any pleading requiring particulars. A traverse by a defendant, even of a negative plea by a plaintiff which he must establish in order to succeed, is not, in my judgment, a matter ‘stated’ within the defence within the meaning of this rule. The rules under the Judicature Act abolishing the general issue were intended to limit and define the issues to be tried, but not to force a defendant on a traverse to undertake the burden of proving anything himself, and still less to relieve a plaintiff from any onus of proof resting solely upon him.’
Astbury J
[1918] 1 Ch 133
England and Wales
Cited by:
Appeal From – Weinberger v Inglis and Others HL 1919
A member of enemy birth was excluded from the Stock Exchange, and it was held that the Committee had heard him before acting.
Held: The power to admit persons to membership was held to be both an administrative power and a fiduciary power. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.653101

MB Garden Buildings Ltd v Mark Burton Construction Ltd and Another: IPEC 28 Feb 2014

The claimant sought orders to allow it to proceed with its claim for trade mark infringement in respect of the use of an internet domain name. The defendant said that the claimant had simply failed to comply with the rules as to service of documents.
Hacon J
[2014] EWHC 431 (IPEC)
Bailii
England and Wales

Updated: 12 August 2021; Ref: scu.522106

Al Jaber and Others v Mitchell and Others: CA 30 Jul 2021

Whether the immunity from suit afforded to participants in court proceedings, including to parties and witnesses of fact, applies to statements made under oath and by witness statement by an examinee in the course of a private examination conducted under section 236 of the Insolvency Act 1986
[2021] EWCA Civ 1190
Bailii
England and Wales

Updated: 12 August 2021; Ref: scu.666316

Smith v C D Dickinson and J Dickinson: 31 Jan 1844

Where a Judge at Nisi Prius, under stat. 1 W. 4, c. 7, S. 2, certifies for speedy execution ‘for the sum found by the verdict,’ the plaintiff cannot have a ca. sa. for such sum, and, after execution thereof, another ca. sa. for the taxed costs. So held where the certificate was given, Match 13th, and the Master had declined to indorse his allocatur for costs, and deliver it so indorsed, before the fifth day of Easter term.
[1844] EngR 198, (1844) 5 QB 602, (1844) 114 ER 1376
Commonlii
England and Wales

Updated: 11 August 2021; Ref: scu.304790

HM Revenue and Customs v Changtel Solutions UK Ltd: CA 28 Jan 2015

The Court was asked whether, when there is both (i) an appeal against a VAT assessment pending in the tax tribunal, and (ii) a winding-up petition pending in the Companies court, the tax tribunal or the Companies court is the appropriate forum to determine whether the petition debt is disputed in good faith on substantial grounds, or, in other words, whether the appeal has a real as opposed to a fanciful or frivolous prospect of success.
Longmore, Patten, Vos LJJ
[2015] EWCA Civ 29, [2015] 2 BCLC 586, [2015] BVC 8, [2015] WLR(D) 33, [2015] BCC 317, [2015] BPIR 327, [2015] 1 WLR 3911, [2015] STC 931, [2015] STI 248
Bailii, WLRD
Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 8(3)(c)
England and Wales
Cited by:
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.541957

BP Exploration Co (Libya) Ltd v Hunt: 1976

The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in support of a claim for jurisdiction. A failure to refer to arguments on the merits which the defendant may raise in answer to the claim should not generally be characterised as a failure to make a full disclosure unless they were of such weight that the omission might mislead the court in exercising its jurisdiction and its discretion whether or not to grant leave. Kerr J said: ‘the court should not consider the supporting affidavit as though it were marking an examination paper, deciding one way or the other merely on the basis of the extent to which the affidavit could have been improved. The primary question should be whether in all the circumstances the effect of the affidavit is to mislead the court in any material respect concerning its jurisdiction and the discretion under the rule.’
and ‘I think that the correct analysis is that the contract was made in London and amended in Dallas; not that it was made partly in London and partly in Dallas, or elsewhere. The 1967 amendment could not stand alone; it merely amended certain provisions of the 1960 agreement. The position would, of course, have been different if the 1967 amendment had operated as a discharge of the 1960 agreement and substituted a fresh agreement. The foregoing analysis is also in accord with what Denning LJ appears to have thought in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327, 334, where he preferred the view that an agreement made in one country and amended in another should be regarded as not having been made in the latter country.’
Kerr J
[1976] 3 All ER 879, [1976] 1 WLR 788
RSC Order 11 rule 1(d)(iii)
England and Wales
Citing:
Cited – Entores Ltd v Miles Far East Corporation CA 1955
The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was . .

Cited by:
Cited – Sawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
Cited – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
Applied – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
See Also – BP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
See Also – BP Exploration Co (Libya) Ltd v Hunt (No. 2) 1982
The court considered the application of interest to damages: ‘the basic principle . . that interest will be awarded from the date of loss’ and ‘the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been . .
Cited – Novus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.237263

Webster v Sandersons Solicitors (A Firm): CA 31 Jul 2009

The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994
Lord Clarke MR, Arden J, Lloyd LJ
[2009] EWCA Civ 830, [2009] 2 BCLC 542, [2009] PNLR 37
Bailii
England and Wales
Citing:
Cited – Giles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .
Cited – Foss v Harbottle 25-Mar-1843
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
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 – Day v Cook CA 26-Apr-2001
. .
Cited – Cohen v Kingsley Napley and Another CA 10-Feb-2006
. .
Cited – Gardner v Parker CA 25-Jun-2004
The court considered the extent to which a shareholder or creditor of a company who has suffered loss, as the result of a breach of duties owed both to him and the company by a defendant, is nonetheless debarred from recovering that loss, because . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.368606

Hamid, Regina (on The Application of) v Secretary of State for The Home Department: Admn 30 Oct 2012

Sir John Thomas P said: ‘The court . . intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court’s requirements.’
Sir John Thomas P
[2012] EWHC 3070 (Admin)
Bailii
England and Wales
Cited by:
Cited – Gubarev and Another v Orbis Business Intelligence Ltd and Another QBD 6-Aug-2020
Wrongful Transmission of Distanced Hearing
In a defamation case, the solicitors representing one party had live streamed a video of a defamation trial to several individuals outside the jurisdiction without the Court’s permission. The trial took place during the Coronavirus pandemic, and . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.465835

Earl Ferrers v Shirley: 20 Apr 1837

The Defendant, before replication, served a notice of motion to dismiss. On the next day Plaintiff replied, and the motion was not made, and, consequently, Plaintiff did not undertake to speed. No subpoena to rejoin was served, and the Defendant again moved to dismiss. Held, that neither the 16th nor the 17th Order applied, but that the case was governed by the old practice.
[1837] EngR 639, (1837) 7 Sim 484, (1837) 58 ER 923 (A)
Commonlii
England and Wales

Updated: 09 August 2021; Ref: scu.313756

Naylor v Wellington: 20 Apr 1837

A special injunction had been obtained against four defendants, who were co-partners, to restrain them from doing an act jointly. Three of the Defendants had answered, but the fourth had not. Held, that the Plaintiff might read affidavits in opposition to a motion by the three to dissolve the injunction against the four.
[1837] EngR 641, (1837) 8 Sim 396, (1837) 59 ER 157 (B)
Commonlii
England and Wales

Updated: 09 August 2021; Ref: scu.313758

Corporacion Nacional Del Cobre De Chile v Metallgesellschaft Ag Ltd and Others: ChD 6 Jan 1999

The overriding need for efficiency in litigation meant that a party could be absolutely barred from serving interrogatories before the procedure of discovery had been completed. Ord 14 application was a proper litigation purpose to support interrogatory.
Times 06-Jan-1999
England and Wales

Updated: 09 August 2021; Ref: scu.79516

Re General Horticultural Company, Ex parte Whitehouse: ChD 1886

Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the first charge was duly given to the liquidator. Some time later Whitehouse obtained a judgment against Wills, which he sought to enforce by garnishee order nisi against the sum due from the company. Later, the second and third of Wills’ creditors gave notice to the liquidator of their charges. It was accepted that the interest of the first chargee could not be overridden by the garnishee order, but a question arose whether Whitehouse was entitled to execute on the remainder of the debt, notwithstanding the second and third chargees.
Held: He could not. A garnishee order ‘charges only what the judgment debtor can himself honestly deal with’. Section 62 describes the order nisi as binding the judgment debtor’s chose in action in the hands of the garnishee. The effect of the order, is to give the judgment creditor execution against the debts owing to his debtor.
Chitty J
(1886) 32 Ch D 512
Common Law Procedure Act 1854 62
England and Wales
Cited by:
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.183519

Jamieson v Jamieson: HL 1952

The house discussed the test for relevancy of a pursuer’s averments.
Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
The House reversed the decision of the Court of Session that a wife’s allegations of cruelty should be struck out as irrelevant and insufficient. Lord Normand suggested: ‘that it does not do justice to the averments to take up each alleged incident one by one and hold that it is trivial or that it is not hurtful or cruel . . The relationship of marriage is not just the sum of a number of incidents . . ‘
Lord Normand: ‘The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved.’
Lord Reid said: ‘If it can be shown that, even if the pursuer succeeds in proving all that he avers, still his case must fail, it appears to me to be highly advantageous that time and money should not be spent on fruitless inquiry into the facts . .’
Lord Normand, Lord Reid
1952 SC (HL) 44
Scotland
Cited by:
Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Cited – Flood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
Cited – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.241642

Dian AO v Davis Frankel and Mead: 2005

Moore-Bick J discussed the principle of open justice, saying that the highest importance was to be attached to the principle and that it was for that reason that in ‘all but exceptional cases’ hearings are conducted in public, judgment is delivered in public and proceedings can be freely reported: ‘It could be argued that the principle of open justice demands that the court records be open to all and sundry as a right in order to enable anyone who wishes to do so to satisfy himself that justice was done in any given case. But that has never been the law and it is not what r 5.4 says. I accept that the line of authority on the principle of open justice was not specifically drawn to the attention of Nicholls V-C in Dobson v Hastings, but I am unable to accept that he was not well aware of it. It clearly did not strike him as odd, however, that the court’s permission should be required in order to obtain access to the record. The principle of open justice is primarily concerned with monitoring the decision-making process as it takes place, not with reviewing the process long after the event.’ He continued, saying that if a non-party simply seeks permission to use the court file as a source of potentially useful information, the principle of open justice is not engaged.
Moore-Bick J
[2005] 1 WLR 2951
Civil Procedure Rules 5.4
England and Wales
Cited by:
Cited – ABC Ltd v Y ChD 6-Dec-2010
There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.535111

Dian AO v Davis, Frankel and Mead: QBD 2005

Application was made for the disclosure of documents from an earlier court case involving the defendants.
Held: The application as made was disallowed. The right thing to do was to identify the documents it sought with reasonable precision and then the court would grant or withhold permission in relation to specified documents. The degree of specification required could be satisfied by specifying a class of documents where there would not be difficulty on the facts in holding whether a document did, or did not, come within the relevant class.
Moore-Bick J
[2005] 1 WLR 2951
England and Wales
Cited by:
Cited – Pressdram Ltd v Whyte ChD 30-May-2012
The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
Held: The applicant had provided appropriate . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.472481

Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2): SC 29 Jun 2016

Undisclosed Matter inadequate to revisit decision

The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Held: (Baroness Hale of Richmond DPSC, and Lord Kerr of Tonaghmore JSC dissenting) The application failed. It was however common ground that the question now before the court was not whether the majority were correct but whether the issue should be re-opened, and: ‘There is no probability, likelihood or prospect (and, for completeness, in my view also no real possibility) that a court would have seen or would see, in the process of preparation, re-drafting and finalisation of the stage 2B report and in the associated material which can now be seen to have existed, anything which could, would or should have caused the Secretary of State to doubt the General Conclusions, or which made it irrational or otherwise unjustifiable to act on them in June 2004. On that basis, the application to set aside the House of Lords’ judgment by reference to the Rashid and other documents disclosed late must fail.’
Lord Kerr, dissenting, said: ‘If the Rashid documents had been before the House of Lords, the following matters would have had to be squarely confronted: ‘despite the claims for their independence, the consultants had been told in unequivocal terms what the government hoped would be the outcome of their report;
the draft report had to be submitted to BIOT officials who had the opportunity to approve or require amendment of its contents;
much of the science of the report (although not that relating to climatic changes) had been severely criticised by Dr Sheppard;
many of the criticisms of the report by Mr Jenness had been endorsed by Dr Sheppard (even though he was also extremely critical of Mr Jenness);
most importantly, the draft report’s central findings in relation to climate change, couched in conditional terms, had been altered to provide a firm prediction that such changes would take place.
In my view, the collective effect of these revelations is that the appeal might well have been decided differently. The passages from the speeches of the majority which have been quoted earlier, for perfectly understandable reasons, bear no trace of reservation or doubt as to the anticipated consequences of any attempt to resettle the islands. If the members of the House of Lords knew that much of the science of the report was considered to be suspect by the scientist retained by the FCO; that the consultants had been given a clear indication of what the government hoped the report would deliver; that the changes to the conclusions of the preliminary study (which were known) proved to be a mild herald of the more radical changes to the Phase 2B report; that the Chagos Islands were not in an active cyclone belt and that this had a direct bearing on the predictions contained in the report, is it likely that the speeches of the majority concerning the anticipated consequences of an attempt to resettle would have been expressed in such emphatic terms? In my judgment it is not. And if the majority felt compelled, as it surely would, to recognise the lack of certainty in some of the central predictions, is it likely that they would have been prepared to hold as rational a decision to completely deny the Chagossians the right to return to their homeland, simply because a failure to do so would give rise to a campaign that the government should fund resettlement, when it had already been held that they were under no obligation to do so? In my opinion, it is at least distinctly possible that a different view would have been taken by the majority and that the outcome of the appeal would have been different. I would therefore grant the application to re-open the appeal.’
Lord Kerr cited with approval the following summary: ‘A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted. . . A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so (Fordham, Judicial Review, 6th ed, 2012, p125).’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke
[2016] WLR(D) 344, [2016] UKSC 35, [2017] AC 300, [2016] HRLR 16, [2016] 3 WLR 157, UKSC 2015/0021
Bailii, Bailii Summary, WLRD, SC, SC Summary
British Indian Ocean Territory (Constitution) Order 2004 9
England and Wales
Citing:
Reconsidered – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Applied – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Evidence emerged – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Feakins and Another v Department for Environment, Food and Rural Affairs CA 8-Jun-2006
The claimants sought to re-open their appeal saying that the respondent department had failed properly to describe the workings of the clawback scheme under which its claim had been made.
Held: A DEFRA official had provided materially . .
Cited – Bain v The Queen PC 16-Mar-2009
(New Zealand) The defendant had at a previous Privy Council appeal had his conviction for murder overturned. He now challenged the order for a retrial, saying that subsequent disclosures made this unfair.
Held: The order was refused. The . .
Cited – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
At CA – Chagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
Cited – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 August 2021; Ref: scu.566209

Lister and Co v Stubbs: CA 1890

It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other investments into court.
Held: The injunction was refused because the money was not that of the plaintiffs so as to make the defendant a trustee, but was money to which the plaintiffs would be entitled to claim in the action, i.e. ‘a debt due from the Defendant to the Plaintiffs in consequence of the corrupt bargain which he entered into’ but (a) the money which he had received under that bargain could not be treated as being money of the Plaintiffs ‘before any judgment or decree in the action had been made’ The court will not grant an injunction to restrain a defendant from parting with his assets so that they may be preserved in case the plaintiff’s claim succeeds. A claim relating to the acceptance of bribes was not within a proprietary claim.
Lindley LJ discussed the relation between the employer and employee who was accused of betraying his trust in taking a bribe, saying the relationship: ‘is that of debtor and creditor; it is not that of trustee and cestui que trust. We are asked to hold that it is – which would involve consequences which, I confess, startle me. One consequence, of course, would be that, if Stubbs were to become bankrupt, this property acquired by him with the money paid to him by Messrs Varley would be withdrawn from the mass of his creditors and be handed over bodily to Lister and Co. Can that be right?
Another consequence would be that, if the Appellants are right, Lister and Co could compel Stubbs to account to them, not only for the money with interest, but for all the profits which he might have made by embarking in trade with it. Can that be right? ‘
Cotton LJ, Lindley LJ
(1890) 45 Ch D 1
England and Wales
Cited by:
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Wrongly decided – Attorney General for Hong Kong v Reid and Others PC 24-Nov-1993
Principalhas proprietary interest in Trust assets
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.230342

Columbia Pictures Industries Inc v Robinson: ChD 1986

The plaintiff had obtained an Anton Piller order against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos.
Held: The injunction had been obtained for an improper purpose and without full disclosure. It was wrong in principle to grant an injunction, the scope of which the defendants could not know and could not discover.
There was no provision in the Copyright Act 1956 for presumptions as to the subsistence of copyright and its ownership to arise from labels or marks fixed to films. Injunctions were granted in relation to copyrights to which it had been established in the action that existing members were entitled.
Scott J considered the request for an injunction to protect the plaintiff’s intellectual property: ‘In the circumstances, I have no doubt but that the plaintiffs have established in this case that they are entitled to the protection of an injunction.
Counsel, however, has sought on the plaintiffs’ behalf an injunction of a very great breadth. He has sought an injunction restraining the defendants from knowingly infringing copyright in any film for the time belonging to any of the plaintiffs (meaning any member of the MPAA besides the named plaintiffs) or in respect of which any of them is for the time being the exclusive licensee.
It would be impossible for the defendants to know what films were covered by an injunction in that form. In my judgment it would be wrong in principle to grant an injunction the scope of which the defendants subject to it could not know and could not discover. Experience in this litigation has underlined the very great difficulty that is often experienced in ascertaining in whom copyright or exclusive rights in a particular film are for the time being vested.
I am prepared to grant an injunction protecting the copyright or exclusive rights of any of the present plaintiffs in the films in respect of which their respective titles have been established in this action. I am not prepared to extend this protection to companies who are not plaintiffs, that is to say to future MPAA members. Nor am I prepared to extend this protection to cover other films. I am, however, willing to give the present plaintiffs or any of them liberty to apply from time to time on notice to the defendants to extend the injunction to other films. In order to obtain that extension, I contemplate that the applicant would have to satisfy the court, first, that it had copyright or exclusive rights in the film or films in question and, second, either that it had applied to the defendants for suitable undertakings which had not been given, or that for some reason undertakings by the defendants would not be sufficient. The costs of any such application would of course depend on the circumstances of that application.’
Scott J declined to order an inquiry into damages under the plaintiff’s undertaking because the losses had been incurred in a business which was ‘illicit’ albeit not criminal under the law as it then stood.
A solicitor making an ex parte application for an Anton Piller order has a strict duty to m ake full and frank disclosure of all relevant matters, and must not act oppressivley in the execution of the order. In case of a breach of these obligations, the remedy was in damages, not necessarily in the removal of the order. The court considered the use of ex parte applications: ‘It is a fundamental principle of civil jurisprudence in this country that citizens are not to be deprived of their property by judicial or quasi-judicial order without a fair hearing’ and ‘what is to be said of the Anton Piller procedure which, on a regular and institutionalised basis, is depriving citizens of their property and closing down their businesses by orders made ex parte, on applications of which they know nothing and at which they cannot be heard, by orders which they are forced . . to obey, even if wrongly made?’
Scott J
[1987] Ch 38, [1986] 3 WLR 542, [1986] FSR 367, [1986] 3 All ER 338
Copyright Act 1956
England and Wales
Cited by:
Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Cited – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.280408

Phones 4U Ltd v EE Ltd and Others: ChD 17 Jul 2020

Various aspects of disclosure sought by the Claimant
Roth J
[2020] EWHC 1921 (Ch)
Bailii
England and Wales
Cited by:
See Also – Phones 4U Ltd v EE Ltd and Others ChD 20-Jul-2020
Judgment on applications by the First to Third Defendants for security for costs. The issue in dispute is not the question of security as such, since the Claimant, which is in administration, has agreed to provide security to all the Defendants. . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.652768

Altomart Ltd v Salford Estates (No 2) Ltd: CA 29 Oct 2014

Reasons for grant of additional time to file respondent’s notice
Moore-Bick, Ryder LJJ, David Richards J
[2014] EWCA Civ 1408, [2015] 1 WLR 1825, [2014] WLR(D) 451, [2014] 6 Costs LR 1013, [2015] CP Rep 8
Bailii, WLRD
Civil Procedure Rules
England and Wales

Updated: 07 August 2021; Ref: scu.538146

Bailey v Warren: CA 7 Feb 2006

The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought by the claimant without a litigation friend and judgment was entered in accordance with the compromise for damages to be assessed subject to the 50% reduction for contributory negligence. The issue then arose whether the claimant had been a patient at any material time. The trial judge found that the claimant was a patient as at the date when judgment was entered giving effect to that compromise but that he was not a patient when the agreement was made. It was now sought to re-open the settment reached.
Held: The test of mental capacity was issue-specific and that it had to be applied in relation to the particular transaction in respect of which the question falls to be decided.
Hallett LJ said: ‘the issue was the issue of liability and the piece of business done was the compromise of the issue of liability not the conduct of the whole of the litigation.’
Arden LJ said: ‘It seems to me that the right approach must be to ask as a matter of common sense whether the individual steps formed part of a larger sequence of events which should be seen as one, or whether they were in fact self-contained steps which were not connected with each other.
the relevant transaction for the purposes of a compromise made at a time when legal proceedings are in contemplation should be treated in the same way as a compromise made in the course of those proceedings . . The logical time for solicitors to consider the capacity of their client to litigate must surely be before the letter before action is sent not after it is sent and immediately before the proceedings are issued. In that event they could find that the client had no capacity to bring the proceedings that he had threatened without the intervention of a litigation friend . . an individual can only properly evaluate an offer to settle a claim if he has some idea of what would follow from his rejection. So the individual must therefore have some capacity to understand what might happen in the course of the contemplated litigation. So some at least of the issues involved in the decision to litigate are also involved in the decision to compromise a claim which would otherwise have to be litigated . . there is no doubt that where a compromise is made in the course of litigation the test is whether the individual has capacity to conduct those proceedings . . I prefer the conclusion that the appropriate test in this case is whether the client had capacity to start proceedings. That would include the question whether he would have capacity for the purposes of an offer of compromise. I would add that, in my judgment, where a client seeks damages for personal injury because he has suffered a brain injury, capacity is a question that ought in general routinely to be considered by those representing him.
The assessment of capacity to conduct proceedings depends to some extent on the nature of the proceedings in contemplation. I can only indicate some of the matters to be considered in accessing a client’s capacity. The client would need to understand how the proceedings were to be funded. He would need to know about the chances of not succeeding and about the risk of an adverse order as to costs. He would need to have capacity to make the sort of decisions that are likely to arise in litigation. Capacity to conduct such proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise. For a client to have capacity to approve a compromise, he would need insight into the compromise, an ability to instruct his solicitors to advise him on it, and an understanding of their advice and an ability to weigh their advice. So far as Mr Bailey was concerned, the receipt of damages could have a substantial impact upon him. He would need to know what he was giving up and what would happen if he refused to accept the offer of compromise.’
Ward LJ said: ‘I consider that the answer is provided by the terms of Part 21 itself and the several references in the rules . . to the purpose to be served by having a litigation friend, namely having someone able properly to conduct the proceedings on behalf of the patient. That is the capacity which the patient lacks. Thus the enquiry should be focused on the capacity to conduct the proceedings as Arden L.J. describes in paragraph 126. This it seems to me is totally consistent with Masterman-Lister.
If, as it seems to me, the relevant capacity is capacity to conduct proceedings, then the client must be able to understand all aspects of those proceedings and take an informed decision, with the help of such explanation as he is given, which bears upon them. It cannot be judged piecemeal. If he has the ability to understand what is meant by a 50/50 split of liability but lacks the capacity to understand the concept of damages which results from that division of liability, then he lacks true capacity to conduct the proceedings . . all of this makes much more sense . . where one is considering the capacity to conduct the proceedings at the moment when they are instituted and thereafter during their continuance and it makes less sense to consider the matter in the run up to the litigation even if litigation is a possible outcome in default of a fully successful settlement of the claim.’
Ward, Arden, Hallett LJJ
[2006] EWCA Civ 51, [2006] CP Rep 26
Bailii
England and Wales
Citing:
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Cited by:
Cited – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2021; Ref: scu.525975

Dunhill v Burgin (No 2): QBD 9 Nov 2012

The Court was asked whether CPR 21.10 has any application ‘where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability?’
Held: Where a civil claim is issued, the Civil Procedure Rules are incorporated into any agreement made to settle the case and that CPR 21.10(1) required that this settlement be approved by the court irrespective of how matters appeared at the time. Hence the settlement was void, the court order should be set aside and the case should go for trial.
Leave to appeal direct to the Supreme Court as given.
Bean J
[2012] EWHC 3163 (QB), [2012] WLR(D) 321, [2012] 1 WLR 3739
Bailii, WLRD
England and Wales
Cited by:
At First Instance (2) – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.465699

In re Grosvenor Hotel, London (No 2): CA 1964

Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to the framing of government policy at a high level.
The Rules of the Supreme Court cannot change the substantive law unless expressly permitted so to do by statute.
Lord Denning MR, Salmon LJ
[1965] Ch 1210, [1964] 3 All ER 354
England and Wales
Cited by:
Cited – Kelly, Regina (on the Application of) v Warley Magistrates Court and The Law Society Admn 31-Jul-2007
. .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.372591

Dietz v Lennig Chemicals Limited: HL 1969

Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The plaintiff, unknown to the solicitors on either side, remarried. The master approved the settlement but, before the consent order had been drawn up, the defendant’s learned of the remarriage and applied to set the order aside. The master agreed.
Held: There were two issues: was the settlement agreement prior to its approval binding on the parties or could either side repudiate? Second, even if it was not binding, was it correct to set aside his consent order rather than draw it up? Both points were decided against the plaintiff, the first because that was held to be the true effect of Order 80, r11; the second because the defendants’ consent to the court’s approval of the settlement had been induced by an innocent misrepresentation.
Lord Pearson said: ‘There was a suggestion made in the course of the argument that the Compromise Rule, if it meant what it appears to say – if ‘invalid’ means ‘of no legal effect’ – is ultra vires. I do not accept that suggestion. When the claim of an infant or other person under disability is before the court, the court needs, for the purpose of protecting his interest, full control over any settlement compromising his claim. In my view, the making and re-making of the Compromise Rule were valid exercises of the rule-making power under the Judicature Acts, which is now contained in section 99 of the Act of 1925 . . . The compromise rule is the vital one here. . . In my view, ‘not valid’ means having no legal effect. The settlement, so far as it related to the pounds 9,250, in which the infant was interested, was only a proposed settlement until the court approved it. Either party could lawfully have repudiated it at any time before the court approved it. It had no validity by virtue of the parties’ agreement in the August settlement. That which might have given it validity would have been an order made by the master with the effective consent of the parties . . ‘
Lord Morris of Borth-y-Gest said: ‘In my view, there was no binding agreement made in August. If in the present case a writ had first been issued and if thereafter there had been discussions leading to agreement, such agreement would have lacked validity unless and until the approval of the court was given. This is made clear by RSC Ord 80, r11 . . The present case came within the provisions of Order 11, r12 . . When . . the originating summons was taken out it made a ‘claim’ on behalf of a person under disability (ie the infant . . [T]he agreement ‘for the settlement of the claim’ would depend for its validity upon obtaining approval of the court. [p183] . . If the court’s approval were given, a binding agreement would result upon the basis of which certain directions could be given by the court.’
Lord Morris of Borth-y-Gest, Lord Pearson.
[1969] 1 AC 170
Rules of The Supreme Court, judicature Act 1925 99
England and Wales
Cited by:
Cited – Drinkall (A Minor Who Sues By Her Mother and Litigation Friend) v Whitwood CA 6-Nov-2003
The claimant, a child, had sought damages. An agreement was made to compromise the claim. Later the child sought to withdraw from it.
Held: No court order had been made to approve the compromise, and therefore no binding arrangement existed. . .
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.188679