Category: Litigation Practice

White v Fell: 12 Nov 1987

The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a person’s mental capacity: ‘The expression ‘incapable of managing her own affairs and property’ must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided . . . It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . . . Secondly, having identified the problem it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . . . Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive.’
Boreham J
Unreported, 12 November 1987
England and Wales
Cited by:
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – 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 . .
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.219085

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. Dietz was binding and clear. Estoppel might have been available in different circumstances.
Simon Brown LJ pointed out that ‘the claim’ in CPR 21.10 must mean the cause of action rather than any proceedings in which the claim is asserted. This is clear from the wording of CPR 21.10(2), which provides the procedure whereby settlements made before proceedings are begun are approved by the court (that is, as pointed out in Dietz, by a simplified process rather than having to issue a claim in the ordinary way): ‘Where – (a) before proceedings in which a claim is made by, or on behalf of, or against a child or patient [now, protected party] (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and (b) the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim, the claim must (i) be made using the procedure set out in Part 8 (alternative procedure for claims); and (ii) include a request to the court for approval of the settlement or compromise.’
Lord Justice Jonathan Parker Lord Justice Simon Brown Lord Justice Thomas
[2003] EWCA Civ 1547, Times 13-Nov-2003, [2004] 4 All ER 378, [2004] 1 WLR 462
Bailii
England and Wales
Citing:
Cited – Dietz v Lennig Chemicals Limited HL 1969
Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The . .

Cited by:
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 – 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.187540

Henderson v Dorset Healthcare University NHS Foundation Trust: SC 30 Oct 2020

Where a claimant, during a serious psychotic episode, committed a criminal offence, which she would not have committed but for the defendant’s negligence, can she recover damages for the consequences of having committed the offence, including her subsequent loss of liberty?
The Court considered an invitation to make use of the Practice Statement: ‘As this court has recently emphasised, it will be ‘very circumspect before accepting an invitation to invoke the 1966 Practice Statement’: Knauer v Ministry of Justice [2016] AC 908, para 23. It is important not to undermine the role of precedent and the certainty which it promotes. Circumstances in which it may be appropriate to do so include where previous decisions ‘were generally thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy’ – per Lord Reid in R v National Insurance Comr, Ex p Hudson [1972] AC 944, 966. Even then the court needs to be satisfied that a departure from precedent ‘is the safe and appropriate way of remedying the injustice and developing the law’ – per Lord Scarman in R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, 106.’
Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin, Lord Hamblen
[2020] UKSC 43, [2021] PNLR 7, [2021] AC 563, [2021] 2 All ER 257, (2021) 177 BMLR 1, [2020] 3 WLR 1124, [2021] Med LR 26, [2020] WLR(D) 592, [2021] PIQR P7
Bailii, WLRD, Bailii Press Summary, Bailii Issues and Facts
England and Wales
Cited by:
Cited – Secretary of State for Health and Another v Servier Laboratories Ltd and Others SC 2-Jul-2021
Economic tort of causing loss by unlawful means
The Court was asked whether the ‘dealing requirement’ is a constituent part of the tort of causing loss by unlawful means; whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 02 August 2021; Ref: scu.655458

The Sussex Peerage Case: 1844

Statements against penal interest are outside the common law exception of statements against interest. The oral confession of a deceased person was considered.
The court considered principles of statutory interpretation: ‘Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver.’ and ‘If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver’.
Tindal CJ
(1844) 11 Cl and Fin 85, 8 ER 1034, [1844] EngR 822, (1844) 11 Cl and Fin 85, (1844) 8 ER 1034
Commonlii
England and Wales
Cited by:
Cited – Onesearch Direct Holdings Ltd (T/A Onesearch Direct) v City of York Council Admn 19-Mar-2010
onesearch_yorkAdmn2010
The court considered the conditions under which the respondent authority replied to all enquiries as to properties within its area. The replies were given by a standardised all inclusive information sheet derived from a central database. The . .
Cited – Vacher and Sons Ltd v London Society of Compositors HL 18-Nov-1912
Lord Moulton said that the danger of departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’.
Lord Haldane LC after stating that . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.218846

Regina (McCann and Others) v Manchester Crown Court: CA 9 Mar 2001

Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts which might be the subject of criminal charges, but might not, and orders in civil proceedings might themselves have consequences equal in severity to criminal proceedings. Lord Phillips of Worth Matravers MR said: ‘Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose.’
Lord Phillips MR
Times 09-Mar-2001, [2001] 1 WLR 1084, [2001] EWCA Civ 281
Bailii
Crime and Disorder Act 1998 1, European Convention on Human Rights 6
England and Wales
Citing:
Appeal from – Regina v Manchester Crown Court, ex parte McCann and others QBD 22-Nov-2000
An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the . .
Appealed to – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Proprietary Articles Trade Association v Attorney-General for Canada PC 1931
The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the . .
Cited – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .
Cited – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
Distinguished – Customs and Excise Commissioners v City of London Magistrates’ Court QBD 2000
Access orders were sought by the Customs and Excise against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted ‘criminal proceedings’ within the meaning of section . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Ozturk v Germany ECHR 21-Feb-1984
A minor infringement may be the subject of a criminal charge: ‘If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 . .
Cited – Steel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
Cited – Lauko v Slovakia ECHR 2-Sep-1998
The applicant was fined under the domestic Minor Offences Act for accusing his neighbours, without justification, of causing a nuisance. The government relied on the modesty of the punishment capable of being imposed and the fact that the offence . .
Cited – Benham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .

Cited by:
Cited – Regina v Moore, Kerr, Haroon CACD 5-Oct-2001
The applicants challenged the procedures under which, having been found unfit to plead by proceedings under the section, they were then found to have committed the acts forming the offences. The defendants were unable to put forward any case in . .
Cited – Gough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
Appeal from – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Port Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.85986

Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: CA 14 Jul 2015

Appeal from order allowing use of closed material procedures under section 6 of the 2013 Act.
Richards LJ said: ‘The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliament’s assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly.’
Richards, Sullivan, McFarlane LJJ
[2015] EWCA Civ 687, [2016] 3 All ER 837
Bailii
Justice and Security Act 2013 6
England and Wales
Citing:
Appeal from – Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jul-2014
The claimants had wrongly been listed as sanctions breakers, and now challenged the respondent’s refusal to remove them from the related list. . .

Cited by:
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.550204

Belhaj and Another v Straw and Others: QBD 21 Jul 2017

The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings in which a closed material application may be made pursuant to section 6 of the 2013 Act.
Popplewell J said: ‘Whilst this is a matter for more detailed consideration at the section 8 stage, it appears to me to be very unlikely that the material could be put into open or made available to the claimants or their legal representatives in a way which would better promote a fair and effective trial than a closed material procedure. As I have observed, much of the material can only properly be understood and weighed in the context of a substantial part of the material as a whole, such that gisting is unlikely to provide a realistic solution in most instances. Sittings in private and/or the use of confidentiality rings are unlikely to provide a satisfactory solution, both because of the risk of disclosure, even inadvertent, and because of the hobbling effect on the conduct of the claimants’ case if, as is almost inevitable, they were themselves to be excluded from the confidentiality ring . . These claims are brought not only against the Government, but against two named individuals who both wish to have a real and fair opportunity to defend themselves, but who cannot do so unless there is a closed material procedure.’
Popplewell J
[2017] EWHC 1861 (QB)
Bailii
Justice and Security Act 2013 6
England and Wales
Citing:
See Also – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See Also – Belhaj and Another v Straw and Others QBD 21-Jul-2017
The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings . .

Cited by:
See Also – Belhaj and Another v Straw and Others QBD 21-Jul-2017
The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings . .
See Also – Belhaj and Another v Director of Public Prosecutions Admn 1-Dec-2017
The claimants alleged that the defendants had been involved in their unlawful rendition in 2004 from Thailand to Libya, in particular now challenging by judicial review the decision not to prosecute certain senior British Officers. . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others Admn 15-Mar-2018
A claim that the DPP erred in her decision not to prosecute for alleged involvement in the unlawful rendition of the Claimants to Libya. . .
See Also – Belhaj and Others v Director of Public Prosecutions and Others Admn 15-Mar-2018
Second judgment on the scope of privilege to which we have both contributed – inadvertent disclosure . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others Admn 3-May-2018
Incorrect disclosure of non-redacted material in closed hearing. . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.591302

Mcgartland and Another v Secretary of State for The Home Department: CA 14 Jul 2015

Appeal against a declaration under section 6 of the 2013 Act that proceedings brought by Mr McGartland and his long-term partner, Ms Asher, are ‘proceedings in which a closed material application may be made to the court’.
Richards, Lewison, McCombe LJJ
[2015] EWCA Civ 686
Bailii
Justice and Security Act 2013 6
England and Wales
Cited by:
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.550202

Bonalumi v Secretary of State for the Home Department: CA 1985

In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal proceedings (the eventual case in Sweden). The Court of Appeal Civil Division, by virtue of its constitution under the 1981 Act, had no jurisdiction in criminal matters, and could not hear the case.
[1985] QB 675, [1985] 1 All ER 797
Bankers’ Books Evidence Act 1879 9, Supreme Court Act 1981 18(1)(a)
England and Wales
Citing:
Applied – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .
Applied – Re Clifford and O’Sullivan HL 1921
Military tribunals are ‘not courts at all, but mere committees of officers meeting to inform the mind and carry out the orders of the Commander-in-Chief’. . .
Applied – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
Cited – Malone v Commissioner of the Police for the Metropolis (No 2) ChD 28-Feb-1979
The court considered the lawfulness of telephone tapping. The issue arose following a trial in which the prosecution had admitted the interception of the plaintiff’s telephone conversations under a warrant issued by the Secretary of State. The . .
Not Followed – Regina v Grossman CA 1981
An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
Held: The Civil Division of the Court of Appeal which determined the application was later held to have . .
Cited – Chief Constable of Kent v V 1982
In order to obtain an injunction with respect to property in the possession of a defendant, the right sought to be enforced need not be a proprietary right of the claimant, nor a right for the benefit of the claimant itself. (Slade LJ dissenting) . .
Cited – Chief Constable of Hampshire v A Ltd CA 1984
The court explained Chief Constable of Kent -v- V: ‘jurisdiction to grant an injunction on the application of the Chief Constable in that case existed only if he could be found to have a sufficient interest in making the application, and they appear . .

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 – In Re O (Restraint Order: Disclosure of Assets) 1991
A restraint order had been made against O in an action under the 1988 Act. He sought a variation. On the application of the prosecutor he was ordered to file an affidavit of means. He sought to appeal, but the prosecutor said no appeal lay.
Updated: 30 July 2021; Ref: scu.183547

Ministry of Defence v Sivaji: CA 27 Jul 2021

Appeal against a judgment and order debarring the Appellant from challenging the Respondent’s factual case on exposure to asbestos of her late husband and directing that the action was no longer suitable for a hearing of preliminary issues and there should be a single trial.
Lord Justice Haddon-Cave
[2021] EWCA Civ 1163
Bailii
England and Wales

Updated: 30 July 2021; Ref: scu.666179

Smith v ADVFN Plc: CA 15 Apr 2008

The claimant complained of defamation on internet bulletin boards. He made an application to require the forum operator to disclose IP addresses and other information about posters under a Norwich Pharmacal order. Further applications were made for the IP addresses of posters as postings were made. The court had limited the information to be provided and required the claimant to make a payment towards the costs of the proposed work.
Held: The claimant’s appeal failed. He still owed substantial sums in costs, and it would be wrong to expect the board operators to subsidise his claim.
May, Moore-Bick LJJ
[2008] EWCA Civ 518
Bailii
England and Wales
Citing:
Appeal from – Smith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners CA 2-Jan-1972
The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names.
Held: Buckley LJ . .
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:
See Also – Smith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
See Also – Smith v ADVFN Plc and Others CA 30-Jul-2009
Application for leave to appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.267910

Various Claimants v News Group Newspapers Ltd and Others: ChD 12 Jul 2013

The claimants sought disclosure by the police of information relating to the phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper. They were wanting to make claims against the respondent, but were hampered by the absence of appropriate information.
Held: the first, and real, question is whether the disclosure sought from the MPS could be justified by invoking the Norwich Pharmacal jurisdiction. If it can then no further search for jurisdiction is necessary.
Mann J
[2013] EWHC 2119 (Ch), [2014] EMLR 6, [2013] WLR(D) 314, [2014] 2 WLR 756, [2014] 1 Ch 400
Bailii, Gazette, WLRD
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Aoot Kalmneft v Denton Wilde Sapte (A Firm) Merc 29-Oct-2001
The court ordered relief by way of disclosure against a third party: ‘In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why 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 – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – Ricci v Chow CA 1987
An application was made by the plaintiff for interrogatories which would have revealed the publisher of an allegedly defamatory letter.
Held: The interrogatories were disallowed. Under the Norwich Pharmacal jurisdiction the respondent was no . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.512438

Norwich Pharmacal Co and others v Customs and Excise Commissioners: CA 2 Jan 1972

The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names.
Held: Buckley LJ said: ‘If a man has in his possession or control goods the dissemination of which, whether in the way of trade or, possibly, merely by way of gifts (see Upmann v Forester (1883) 24 ChD 231) will infringe another’s patent or trade mark, he becomes, as soon as he is aware of this fact, subject to a duty, an equitable duty, not to allow those goods to pass out of his possession or control at any rate in circumstances in which the proprietor of the patent or mark might be injured by infringement ensuing. The man having the goods in his possession or control must not aid the infringement by letting the goods get into the hands of those who may use them or deal with them in a way which will invade the proprietor’s rights. Even though by doing so he might not himself infringe the patent or trade mark, he would be in dereliction of his duty to the proprietor. This duty is one which will, if necessary, be enforced in equity by way of injunction: see Upmann v Elkan (1871) LR 12 Eq 140 (1871) 7 Ch App 130. The man having possession or control may also be under a duty to give information in relation to the goods to the proprietor of the patent or mark: Upmann v Elkan .’
Buckley LJ
[1972] 2 All ER 813, [1972] RPC 743
England and Wales
Citing:
Appeal from (revresed) – Norwich Pharmacal Co and others v Customs and Excise Commissioners ChD 1972
The court considered an application for an order that the other party identify third party wrong-doers. . .
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:
Appeal from (reversed) – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Cited – Smith v ADVFN Plc CA 15-Apr-2008
The claimant complained of defamation on internet bulletin boards. He made an application to require the forum operator to disclose IP addresses and other information about posters under a Norwich Pharmacal order. Further applications were made for . .
Cited – Golden Eye (International) Ltd and Another v Telefonica UK Ltd ChD 26-Mar-2012
Golden Eye and 13 other claimants sought a Norwich Pharmacal order against Telefonica UK Ltd trading as O2, one of the six largest retail internet service providers in the UK. The object of the claim was to obtain disclosure of the names and . .
Cited – Mircom International Content Management and Consulting Ltd and Others v Virgin Media Ltd and Another ChD 16-Jul-2019
The claimants, producers of pornographic films, sought disclosure by the defendant internet service provider of certain internet protocol addresses, wishing to pursue those it said had wrongfully downloaded their films. The court was asked first . .
Cited – AB Bank Ltd, Off-Shore Banking Unit (Obu) v Abu Dhabi Commercial Bank Pjsc ComC 12-Aug-2016
Application to set aside Norwich Pharmacal Order: ‘The application raises the question whether the court has jurisdiction to permit service out of the jurisdiction of an application for the grant of a Norwich Pharmacal Order.’
A Norwich . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.239094

British Steel Corporation v Granada Television Ltd: HL 7 May 1980

The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right of the media to protect their sources where disclosure was necessary in the interests of justice. As to procedure, the courts could order disclosure of a third party’s name. The defendant here could not claim to have been unaware of any wrongdoing by the person who delivered the documents, and this was not a case where they would receive the limited protection from discovery available in defamation cases.
Lord Wilberforce said: ‘there is a wide difference between what is interesting to the public and what it is in the public interest to make known.’
Wilberforce, Salmon, Fraser of Tullybelton, Russell of Killowen LL, Viscount Dilhorne
[1981] AC 1096, [1981] 1 All ER 452, [1980] 3 WLR 774
England and Wales
Citing:
Cited – Initial Services Ltd v Putterill CA 1967
The plaintiff’s sales manager resigned, but took with him confidential documents which he gave to a newspaper. The defendant sought to justify this, saying that the company had failed to register agreements it should have done under the Act.
Cited – Attorney-General v Clough 1963
The court declined to recognise any right of the media to protect their sources from disclosure of identity where disclosure was in the public interest.
Lord Parker CJ said: ‘it . . would remain open to this court to say in the special . .
Cited – Attorney-General v Mulholland CA 1963
The court rejected a claim for protection from disclosure of matters passing between journalists and their sources: ‘it is said that however these questions were and however proper to be answered for the purpose of this inquiry, a journalist has a . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Orr v Diaper 1876
The plaintiff had a cause of action against the defendant and sought discovery of the name of a third party known to the defendant so that that third party could be joined in. ‘In this case the Plaintiffs do not know, and cannot discover, who the . .
Cited – Abernethy v Hutchinson 17-Jun-1825
An application was made to restrain the Defendants from publishing, in ‘The Lancet,’ Mr Abernethy’s Lectures, which had been delivered extemporally. Lord Eldon, at first, refused the application; but afterward granted an injunction, in the ground . .
Cited – Prince Albert v Strange ChD 8-Feb-1849
albert_strange1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Cited – Cardale -v Watkins 1820
Discovery of documents can only be ordered either within existing proceedings or at most in aid of intended proceedings. Discovery would not be granted for the mere satisfaction of curiosity. . .
Cited – Hillman’s Airways Ltd v SA d’Editions Aeronautiques Internationales 1934
. .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Broadcasting Corporation of New Zealand v Alex Harvey Industries 1980
The rule against a newspaper being ordered to disclose the source of its information in defamation proceedings was extended to apply also in slander of goods. . .
Cited – Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) HL 1977
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the . .
Cited – Regina v Boyes 27-May-1861
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he . .
Cited – Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd 1939
A company is to have the benefit of protection against self incrimination just as much as an individual. A court is not bound without more, by a claim to the privilege by a party to litigation. . .
Cited – Plymouth Mutual Co-operative Soceiety and Industrial Society Ltd v Traders’ Publishing Organisation 1908
Interrogatories in defamation proceedings will not be allowed to request from a newspaper the source of the journalist’s information where there may be considerable public interest. . .
Cited – Adam v Fisher 1914
There were two possible reasons why a newspaper might be treated differently from another organisation in defamation proceedings, in that discovery of the source of information will not be ordered. First, it might be expected that it was the purpose . .
Cited – Lyle-Samuel v Oldhams Ltd 1919
The rule that in defamation proceedings, a newspaper defendant should not be obliged in interrogatories to disclose the name of an informant is so well established as to be beyond argument. ‘All I say is that this is an action of libel against the . .
Cited – South Suburban Co-operative Society Ltd v Orum 1937
Newspaper – privilege against disclosure of source . .
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 – Annesley v Earl of Anglesea 1743
‘no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare.’ . .
Cited – Woodward v Hutchins CA 1977
An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group’s press agent, the defendant’s role had been to see that the group received . .
Appeal from – British Steel Corporation v Granada Television Ltd CA 7-May-1980
Lord Denning MR said that the Norwich Pharmacal case opened ‘a new chapter in our law’ and ‘Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same . .

Cited by:
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Lion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
Cited – Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
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 – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.181347

Miller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others: ChD 23 May 2003

The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such injunctions created commercial risks for third parties, and it seemed reasonable to require undertakings form the applicant for such an injunction. However a freezing order is of a special type, the existence of which could be doubted. A non-proprietary freezing order did not relate to assest in which the applicant held any interest, but rather created a right. Nevertheless a wide injunction could be a request for a claimant to issue blank cheques to unkown and uncounted third parties. A third party who was adversely affected could himself make application to the court, and a wide undertaking was not required. A cross-undertaking had not been given for the benefit of third parties; but the company argued that, by analogy with the standard practice in freezing order cases, it should have been.
Neuberger J said: ‘None the less, while this court should not be over-indulgent to a person seeking an interlocutory injunction, it seems to me that it would be a strong thing to require him to sign not merely a blank cheque in favour of the defendant, if it turned out that he should not have been granted the injunction, but a series of blank cheques in favour of third parties of whose very existence and interest he may be unaware and for whose losses he may find himself liable even though he is entitled to his injunction.
As Mr Howe says, if a third party is detrimentally and unfairly affected by an interlocutory injunction, his interest can either be put before the court by the defendant, as happened in Galaxia, or he can himself make an application to the court to vary or discharge the interlocutory injunction or to extend to him the benefit of the cross undertaking.
If it could be said that the court was overburdened with such applications by third parties or that there were many cases of injustice to third party because of the absence of such a wide cross undertaking, then there might be more in this point. However, I have not had my attention drawn to any case which has led to a procedural problem, nor any reports, whether in the law reports or legal commentaries, of a perceived injustice in this connection.’
47 Accordingly, I am not persuaded that it would be appropriate to impose the sort of wide cross undertaking indemnities on a claimant seeking an interlocutory injunction. That is not to say that the court should never consider imposing a wider cross undertaking in damages than that usually extracted from an applicant for an interlocutory injunction. It is fair to say that the argument in this case has ensured that I will henceforth think a little more carefully about the terms of any cross undertaking in damages to be extracted from a claimant in return for the grant of an interlocutory injunction.
48 Quite apart from this, it seems to me that Miss Heal’s contention suffers from a further problem, namely whether the effect of the wider cross undertaking which she seeks can properly be imposed. The fact that it may have been open to Bahr Behrend to apply for an extension of the cross undertaking, or even if the court could and should have imposed a wider cross undertaking on January 11 or 25, 2002, it does not mean that the court can impose such a cross undertaking retrospectively.’
Neuberger J
Times 06-Jun-2003, Gazette 14-Aug-2003, [2004] FSR 5
Trade Marks Act 1994 16 19
England and Wales
Citing:
Cited – Galaxia Maritime SA v Mineralimportexport CA 1982
The defendants were Mineralimportexport and a freezing injunction was initially granted to prevent them from removing from the jurisdiction (just before Christmas) a cargo on a third party’s vessel which was only on voyage charter to . .

Cited by:
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.183836

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 website-blocking order.
Held: The appeal succeeded as to the costs of compliance with the injunction. The European Directives made no reference to the costs of compliance with such orders, and the issue was one of English Law which would by default ask as to the legal distribution of risks as found by the court. There was no basis for the claimant to look beyond the infringers for their costs, and the rights holders should indemnify the ISP for the costs of compliance. As to the litigation costs, the ISPs had chosen to make this a test case, and took the associated responsibility.
Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge
UKSC 2016/0159, [2018] UKSC 28, [2018] ECC 29, [2018] EMLR 22, [2018] 4 All ER 373, [2018] ECDR 16, [2018] ETMR 32, [2018] 1 WLR 3259, [2018] Bus LR 1417, [2018] WLR(D) 354, [2018] RPC 11
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Jan 30 am Video, SC 2018 Jan 30 pm
E-Commerce Directive 2000/31/EC, Information Security Directive 2001/29/EC, Enforcement Directive 2004/48/EC
England and Wales
Citing:
Appeal from – Cartier International Ag and Others v British Sky Broadcasting Ltd and Others CA 6-Jul-2016
Appeals by five English internet service providers against orders which required them to block or attempt to block access by their customers to certain websites which were advertising and selling counterfeit copies of the respondents’ goods in . .
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 – Singularis Holdings Ltd v Pricewaterhousecoopers PC 10-Nov-2014
(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers. . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – 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 – 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 – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Clipper Maritime Co Ltd v Mineralimportexport 1981
Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity. . .
Cited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Tommy Hilfiger Licensing And Others v Delta Center a.s ECJ 7-Jul-2016
ECJ (Judgment) Reference for a preliminary ruling – Approximation of laws – Directive 2004/48/EC – Enforcement of intellectual property rights – Notion of ‘intermediary whose services are being used by a third . .
Cited – Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2) CA 19-Dec-2001
The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court . .
Cited – UPC Telekabel Wien v Constantin Film Verleih GmbH ECJ 27-Mar-2014
ECJ Request for a preliminary ruling – Approximation of laws – Copyright and related rights – Information society – Directive 2001/29/EC – Website making cinematographic works available to the public without the . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV ECJ 16-Feb-2012
ECJ Information society – Copyright – Internet – Hosting service provider – Processing of information stored on an online social networking platform – Introducing a system for filtering that information in order . .
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Miller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others ChD 23-May-2003
The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such . .
Cited – Scarlet Extended Sa v Societe Belge Des Auteurs Compositeurs Et Editeurs (SABAM) ECJ 14-Apr-2011
ECJ Opinion – Information Society – Intellectual property rights – Directive 2004/48/EC – Copyright and related rights – Directive 2001/29/EC – Illegal downloading on the Internet – Peer to peer through software . .
Cited – Google France and Google v Louis Vuitton Malletier (Intellectual Property) ECJ 23-Mar-2010
ECJ Trade marks Internet Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.617855

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 goods and an account of damages, on the footing that he had himself infringed the mark. The forwarder volunteered the names of the consignors and agreed to submit to whatever order the court should make. That left only the question of the costs of the action.
Held: Lord Romilly MR accepted that the forwarder was not an infringer, but thought that he would have been if after being told of the infringement he had not performed his duty. His duty in Lord Romilly’s view (p 145) was ‘at once to give all the information required, and to undertake that the goods shall not be removed or dealt with until the spurious brand has been removed, and to offer to give all facilities to the person injured for that purpose.’
If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, he is not personally liable, but he does have a duty when called upon to disclose the identity of the wrongdoer.
Lord Hatherley LC, Lord Romilly MR
(1871) LR 12 Eq 140, 7 Ch App 130, [1871] UKLawRpEq 101
Commonlii
England and Wales
Cited by:
Applied – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners CA 2-Jan-1972
The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names.
Held: Buckley LJ . .
Cited – Smith v ADVFN Plc CA 15-Apr-2008
The claimant complained of defamation on internet bulletin boards. He made an application to require the forum operator to disclose IP addresses and other information about posters under a Norwich Pharmacal order. Further applications were made for . .
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 – Aoot Kalmneft v Denton Wilde Sapte (A Firm) Merc 29-Oct-2001
The court ordered relief by way of disclosure against a third party: ‘In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why the . .
Cited – Various Claimants v News Group Newspapers Ltd and Others ChD 12-Jul-2013
The claimants sought disclosure by the police of information relating to the phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper. They were wanting to make claims against the respondent, but . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.181334

Clipper Maritime Co Ltd v Mineralimportexport: 1981

Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity.
[1981] CLY 2125, [1981] 1 WLR 1262
England and Wales
Cited by:
Applied – Z Ltd v A-Z and AA-LL CA 1982
The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.192617

Watts v Revenue and Customs: CA 27 Jul 2021

Whether the judge should have granted an extension of time to enable the appellant, Mr W to comply with an unless order, which refusal to extend time resulted in the striking out of his intended appeal to the High Court from a bankruptcy order which had been made against him.
Sir Christopher Floyd
[2021] EWCA Civ 1124
Bailii
England and Wales

Updated: 28 July 2021; Ref: scu.666177

In Re Northern Ireland Human Rights Commission Northern Ireland: HL 20 Jun 2002

The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to do so.
Held: It was the intention in the Act to extend the powers of the commission. There were no express powers in the Act to make such an intervention, and as a purely statutory body, it had only those powers given to it. However, it had general powers to do such things as were appropriate to promote understanding of Human Rights law, and that would include the power to become involved in an inquest in the way suggested.
Lord Slynn of Hadley, Lord Woolf, Lord Nolan, Lord Hutton and Lord Hobhouse of Woodborough
Times 25-Jun-2002, [2002] UKHL 25, [2002] HRLR 35, [2002] ACD 95, [2002] NI 236
House of Lords, Bailii
Northern Ireland Act 1998 69
Northern Ireland
Citing:
Cited – Attorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .

Cited by:
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.174012

Simms v Conlon and Another: ChD 31 Oct 2007

David Richards J
[2007] EWHC 3041 (Ch)
Bailii
England and Wales
Citing:
See Also – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.341747

Jones v Secretary of State for Social Services; Jones v Hudson: HL 1972

Unsatisfactory decisions of the highest court could cause uncertainty because lower courts tend to distinguish them on inadequate grounds.
One possible source of law is ‘informed professional opinion’. The word ‘final’ can denote different degrees of finality depending upon the context or circumstances in which it is used.
The word ‘final’ can denote different degrees of finality depending upon the context or circumstances in which it is used.
Lord Diplock said: ‘To find out the meaning of particular provisions of social legislation of this character calls, in the first instance, for a purposive approach to the act as a whole to ascertain the social ends it was intended to achieve and the practical means by which it was expected to achieve them. Meticulous linguistic analysis of the words and phrases used in different contexts . . should be subordinated to this purposive approach’
Lord Simon of Glaisdale, Lord Diplock
[1972] 2 WLR 210, [1972] 1 All ER 145
England and Wales
Cited by:
Cited – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.270277

Rakhit v Carty: 1990

A previous decision of the court was found to be within the normal categories of per incuriam, because the earlier decision was made in ignorance of a vitally relevant statutory provision, which showed it to be wrong. The earlier decision was therefore not followed
[1990] 2 QB 315
England and Wales
Cited by:
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.242934

The Office of Fair Trading v Somerfield Stores Ltd and Another: CA 7 Apr 2014

The court was asked whether the Competition Appeal Tribunal was right to find that there were ‘exceptional circumstances’ justifying an extension of time for appealing a decision of the Appellant, the Office of Fair Trading. The court held that there were no exceptional circumstances.
Laws, Patten, Vos LJJ
[2014] EWCA Civ 400
Bailii
England and Wales
Cited by:
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.523551

In re Mumtaz Properties Ltd; Wetton v Ahmed: CA 24 May 2011

Former directors appealed against finding as to their personal liability for directors’ and other loans.
Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.
There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.’
Arden, Aikens, Patten LJJ
[2011] EWCA Civ 610
Bailii
England and Wales
Citing:
Cited – Onassis and Calogeropoulos v Vergottis HL 1968
Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. . .

Cited by:
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Hijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.440119

Various Claimants v Independent Parliamentary Standards Authority: QBD 19 Jul 2021

The principal question I have to resolve is whether the Claimants, who wish to bring a claim against the Defendant for misuse of private information, breach of confidence and breach of the Data Protection Act 1998, should be granted anonymity and permitted to issue the Claim Form withholding their names and addresses.
The Honourable Mr Justice Nicklin
[2021] EWHC 2020 (QB)
Bailii
England and Wales

Updated: 23 July 2021; Ref: scu.666049

Burke and Another v O’Kane and Devine Construction Ltd: QBNI 28 Jun 2013

Appeal by the plaintiffs from the interlocutory order made by the Recorder of Londonderry whereby it was adjudged that the time should be extended/enlarged pursuant to Order 43 Rule 10 of the County Court Rules (Northern Ireland) 1981 so as to permit the defendant/respondent to make a late payment into court.
[2013] NIQB 83
Bailii
Northern Ireland

Updated: 22 July 2021; Ref: scu.544008

Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd; ICI Chemicals and Polymers Ltd: CA 12 Nov 1998

Deepak’s plant was built with know-how derived from ICI via one of ICI’s licensees, Davy. The contract between Davy and Deepak contained (it was assumed) a promise by Deepak to indemnify ICI. The plant was severely damaged by an explosion and Deepak sued. ICI was one of the defendants. Davy claimed to be entitled to a stay of the proceedings against ICI in so far as the claims were covered by the indemnity. One of the many questions argued on appeal was the question when a promise by A (Deepak) to B (Davy) that A will indemnify and hold harmless C (ICI) will be enforced at the suit of B for the ultimate benefit of C. Deepak submitted that there were two cumulative requirements for such a promise to be so enforced: (a) The promise involves, expressly or impliedly, a promise by A not to sue C, and (b) B has a substantial interest of his own in the enforcement of the promise.
Held: An agreement to indemnify contained an implied promise not to sue. On the second part of the submission they held: ‘From these cases (the facts of which do not matter) we think the following propositions emerge.
1. Equitable fraud (something which is unconscionably unfair) is the basis upon which the Courts will restrain or stay the proceedings on the application of a stranger to those proceedings. The power to do so is discretionary.
2. Something more than a promise not to sue is required. The applicant must show that he has some interest of his own to protect. This has been expressed in various ways viz.: ‘Some other good reason’, ‘the real possibility of prejudice’ and ‘some legal or equitable right to protect such as an obligation to indemnify the defendant’.
3. Whether the applicant has shown that he has such an interest depends upon the facts of each case. Where for example there is an issue as to whether the applicant will be required to indemnify the defendant if the proceedings continue the Court must consider the likelihood of a claim for indemnity being made and its merits if it is said to be obviously unsustainable, but no prolonged investigation of the issues or potential issues is called for.’
[1999] 1 Lloyds Rep 387, [1998] EWCA Civ 1752, [1998] EWCA Civ 1753, [1999] BLR 41, (1999) 1 TCLR 200, 62 Con LR 86, [1999] 1 All ER (Comm) 69
Bailii
England and Wales
Citing:
Appeala from – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .

Cited by:
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.145231

CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd.: CA 16 Oct 2006

Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that discretion should be exercised only in exceptionally rare cases. It did not have the power to grant leave itself. The court must look for not only an error of law, but for such a substantial defect in the fairness of the process as to invalidate the decision. This was something more than perversity.
Rix LJ said: ‘Subject to the question of a residual jurisdiction in cases where what is in question is not a review of the commercial judge’s discretion (which as I have said there is common ground cannot be the subject matter of an appeal from a refusal of leave under section 69(8)) but a matter of unfairness, I do not consider any of this to be now capable of dispute.’
and ‘I am not here concerned with the width of judicial review, but with the distinction between a decision on the merits, right or wrong, and the process by which the decision is supposedly taken, adequate or flawed by unfairness.
In my judgment, the dictum of Mustill LJ demonstrates, even before the Human Rights Act, the limits of the Lane v Esdaile principle, and the need for a residual jurisdiction to deal with misconduct or unfairness (or even mischance) in the decision-making process . .’
Sir Anthony Clarke, Master of the Rolls, Lord Justice Rix and Lord Justice Longmore
Times 03-Nov-2006, [2006] EWCA Civ 1340, [2007] Bus LR 162, [2006] 2 CLC 441, [2007] 1 Lloyd’s Rep 142, [2007] CP Rep 4, [2007] 1 All ER (Comm) 501, [2006] HRLR 43, [2007] 1 Lloyds Rep 142
Bailii
Arbitration Act 1996 69(8)
England and Wales
Citing:
Appeal from – CGU International Insurance Plc and others v Astrazeneca Insurance Company Ltd ComC 1-Dec-2005
. .
Approved – North Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .

Cited by:
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.245344

Sumukan Ltd v The Commonwealth Secretariat: CA 21 Mar 2007

The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
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. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Czarnikow v Roth Schmidt and Co 1922
It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453

Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government: CA 6 Feb 2013

The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to be reconsidered.
Held: The appeal failed. The rule in Lane v Esdaile should not be overturned. Recent decisions had done more in fact to confirm the rule, with only very limited exceptions, and ‘All of these authorities emphasise the distinction between the High Court’s judicial review powers and its powers on a statutory appeal. They also emphasise the need for decisions by lower courts and tribunals not to be ‘immune from scrutiny in the higher courts’. Mr Coppel rightly submits that in substance, an appellant on a point of law under section 289 will be raising the kind of arguments that he would be able to raise in judicial review proceedings. But the fact remains that Parliament has chosen to provide a statutory appeal process for challenges to enforcement notices on the very comprehensive grounds set out in section 174. It has not rendered Inspectors’ decisions under section 174 immune from scrutiny in the higher courts; but it has deliberately excluded a challenge to the validity of an enforcement notice on the grounds set out in section 174 by way of judicial review.’
Pill, Sullivan, Tomlinon LJJ
[2013] EWCA Civ 370
Bailii
Town and Country Planning Act 1990
England and Wales
Citing:
Cited – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Cited – Huggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .
Cited – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Cited – Bland v Chief Supplementary Benefit Officer SSCS 1-Dec-1982
Application for leave to appeal to the Court of Appeal against a ruling of the Social Security Commissioner. The tibunal was asked if the Court of Appeal any jurisdiction to give leave to appeal from the refusal of a Social Security Commissioner to . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) CA 26-Nov-1990
Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Rickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – Cart v The Upper Tribunal SC 21-Jun-2011
Limitations to Judicial Reviw of Upper Tribunal
Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper . .
Cited – CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd. CA 16-Oct-2006
Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that . .
Cited – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Prashar v Secretary of State For Environment, Transport and Regions CA 2-Feb-2001
The court had before it three applications for leave to appeal. Each raised the problem of whether, where a High Court judge has considered an application for permission to appeal under section 289 of the 1990 Act, an appeal can be lodged against . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des medecins. They appealed unsuccessfully to the Appeal Council and again unsuccessfully to the Court de Cassation. Dr Le Compte . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – North Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Cited – Seal v United Kingdom ECHR 7-Dec-2010
The court considered a procedural filter which prevented the bringing of a claim relating to the exercise of powers under the 1983 Act without the leave of the court.
Held: ‘The Court notes at the outset that the Applicant pursued his . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.472962

Geogas SA v Trammo Gas Ltd (The Baleares): HL 1991

Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no jurisdiction to hear an appeal. The 1876 Act gave no such power. The principle in Lane v. Esdaile, if applicable, excludes an appeal against the grant of leave just as much as against its refusal.
Lord Jauncey said: ‘No appeal lies to the Court of Appeal unless the High Court or Court of Appeal gives leave. The legislative intention of limited review would be rendered nugatory if appeals were to lie to the Court of Appeal and then to this House against a decision of a Judge refusing or granting leave to appeal an award to the High Court and if an appeal were to lie against a decision of the Court of Appeal to refuse or grant leave to appeal from the High Court to itself under s.1(7).’
Lord Jauncey
[1991] 1 WLR 776, [1991] 1 Lloyd’s Rep 349, [1991] 3 All ER 554
Arbitration Act 1979 1(7)(b), Appellate Jurisdiction Act 1876 3
England and Wales
Citing:
Cited – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Appeal from – Geogas SA v Trammo Gas Ltd (The Baleares) CA 26-Nov-1990
Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused . .
Cited – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited by:
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Cited – CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd. CA 16-Oct-2006
Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that . .
Cited – TAQ v AA CA 19-Dec-2013
Application for permission to appeal against a decision of dismissing the Appellant’s application under section 21A 2005 Act challenging the lawfulness of a Standard Authorisation made under Schedule A1 of the MCA authorizing the deprivation of his . .
Cited – Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government and Another CA 28-Feb-2019
. .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.182916

Kemper Reinsurance Company v The Minister of Finance and others: PC 5 May 1998

(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature of the ratio decidendi of Lane v. Esdaile as explained by the Court of Appeal in Stevenson’s case, the important differences between applications for leave to appeal and applications for leave to apply for judicial review and the long-standing practice of the English Court of Appeal to entertain such appeals have persuaded their Lordships that whatever may have been the reasoning in In re Poh, it is not applicable to this case.’ and ‘Their Lordships consider that the principle in Lane v. Esdaile [1891] AC 210, as explained in In re Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609, is that a provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court. This construction is based upon the ‘nature of the thing’ and the absurdity of allowing an appeal against a decision under a provision designed to limit the right of appeal. This absurdity is greatest in a case such as Lane v Esdaile, in which the appeal is brought to or from the very tribunal to which it is desired to appeal on the merits. As Lord Halsbury pointed out, an appeal against the refusal of leave would involve the higher court in doing the very thing which the provision was designed to prevent, namely, having to examine the merits of the decision appealed against. The Stevenson case generalises the proposition to cover all cases in which leave to appeal is required, even if the tribunal before which the applicant seeks a rehearing on the merits (in that case, a jury) is not the same as that to or from which he seeks to appeal against the refusal of leave. But the emphasis which the Court of Appeal in that case placed upon characterising the hearing before the jury as an appeal shows that the judges would not necessarily have been willing to state the principle any more widely and to include cases in which leave is required to do something other than appeal. For example, it has never been suggested that the provisions of the rules which require the leave of the court to serve process out of the jurisdiction impliedly exclude the right of appeal against the refusal of such leave.’ and ‘The question is therefore whether the requirement of leave to issue a summons for an order of certiorari is sufficiently analogous to a requirement of leave to appeal to attract the reasoning in Lane v. Esdaile and the Stevenson case and enable a court to say that an appeal from the grant or refusal of such leave would so frustrate the policy of requiring leave as to show, by necessary intendment and ‘the nature of the thing,’ that such orders were excluded from the general right of appeal in section 12 of the Court of Appeal Act 1964. For this purpose it is necessary for their Lordships to consider what the policy of the leave requirement is.’
Noting the difference from judicial review: ‘In principle, however, judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct. In the case of a restriction on the right of appeal, the policy is to limit the number of times which a litigant may require the same question to be decided. The court is specifically given power to decide that a decision on a particular question should be final. There is obviously a strong case for saying that in the absence of express contrary language, such a decision should itself be final. But judicial review seldom involves deciding a question which someone else has already decided. In many cases, the decision-maker will not have addressed his mind to the question at all. The application for leave may be the first time that the issue of the legality of the decision is raised and their Lordships think it is by no means obvious that a refusal of leave to challenge its legality should be final. The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which leave was refused at first instance.
In principle, therefore, their Lordships do not think it possible to say that the very nature of the leave requirement for an order of certiorari excludes, or makes absurd, the possibility of an appeal. But unless such a conclusion can be drawn, their Lordships consider it very difficult to find the necessary intendment restricting the general right of appeal conferred by section 12. It may be appropriate, as a matter of policy, to restrict that right of appeal, but their Lordships consider that this is a matter for legislation rather than judicial interpretation.’
Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde, Lord Hutton
Times 18-May-1998, [2000] 1 AC 1, [1998] UKPC 22
Bailii
England and Wales
Citing:
Cited – Pillai v Comptroller of Income Tax PC 1970
The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay. . .
Explained – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Cited – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Cited – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – Practice Direction of 2nd November 1982 CA 2-Nov-1982
A refusal in a non-criminal cause or matter by a Divisional Court of the Queen’s Bench Division or by a single judge to grant leave to apply for judicial review is appealable to the Court of Appeal. . .
Cited – Dhillon v Secretary of State for the Home Department CACD 1988
The court considered the jurisdiction of the Court of Appeal to hear certain appeals, saying that ‘Lane v. Esdaile is of general application and provides that where leave to bring proceedings is required it is not possible to appeal against a . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
Cited – Begum v Secretary of State for the Home Department CA 1990
The court was willing to contemplate the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
Cited – Doorga v Secretary of State for the Home Department CA 1990
The court contemplated the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
Cited – Rickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – Regina v Special Educational Needs Tribunal Ex Parte South Glamorgan County Council CA 12-Dec-1995
The Court of Appeal entertained an appeal by a respondent against the judge’s refusal to discharge leave granted ex parte. Challenges to decisions of tribunal should be by way of appeal not Judicial Review. . .
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Distinguished. – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited by:
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Sarfraz v Disclosure and Barring Service CA 22-May-2015
sarfraz_dbsCA201505
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.159303

Jisha v Secretary of State for The Home Department: Admn 5 Aug 2010

Judicial review raises a short question of construction of section 113(1) of the Nationality, Immigration and Asylum Act 2002, ‘was the claimant’s claim, made in the course of an immigration appeal against the defendant’s refusal to grant her leave to enter, a ‘human rights claim’ in the sense defined by section 113(1)?’ The claimant contended that it was but the defendant contended that it was not, essentially because the claim was not ‘made to the defendant at a place designated by the defendant’ but was instead served on the Asylum and Immigration Tribunal as part of the claimant’s notice of appeal and her legal representative’s skeleton argument for use at the hearing of the appeal.
[2010] EWHC 2043 (Admin)
Bailii
Nationality, Immigration and Asylum Act 2002 113(1)
England and Wales

Updated: 18 July 2021; Ref: scu.421373

Emerald Supplies Ltd and Another v British Airways Plc: CA 18 Nov 2010

Mummery, Toulson, Rimer LLJ
[2010] EWCA Civ 1284, [2011] 2 WLR 203, [2011] CP Rep 14, [2011] UKCLR 20, [2011] Ch 345
Bailii
Civil Procedure Rules 19.6
England and Wales
Citing:
See Also – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .

Cited by:
Cited – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and (3513) ChD 28-Oct-2014
A hearing of an Application whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness / lawfulness of the redactions made by the Defendant airline (‘BA’) and other airlines to the . .
See Also – Emerald Supplies Ltd v British Airways ChD 22-Jul-2015
The judge was hearing a very substantial action between the parties. He had recently travelled to Italy and came back on one of the defendant’s aircraft. The defendant lost the luggage of all passengers and had failed to deal adequately or at all . .
See Also – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.426034

Emerald Supplies Ltd v British Airways: ChD 22 Jul 2015

The judge was hearing a very substantial action between the parties. He had recently travelled to Italy and came back on one of the defendant’s aircraft. The defendant lost the luggage of all passengers and had failed to deal adequately or at all with his complaint. Unfortunately the nature of the complaint had similarities with the facts alleged in the case.
Held: Peter Smith J recused himself: ‘In my view, this was a renewed attempt by BA to get me off the case and they have succeeded. Why have they succeeded, when I do not believe there are any legitimate grounds for making the application?
The simple fact of the matter is the way in which BA have approached it. I had a meeting with the lawyers as soon as I possibly could. The matter, in my view, could have been resolved quite quickly by proper investigation. Instead BA decided, through their lawyers, that I should immediately recuse myself and went down that road immediately. That, to my mind, is unfortunate. On many occasions during this case, when I have been case managing it, I made it clear that cases as complex as this require every lawyer, irrespective of their duty to their clients, to attempt to work together so that the case can be driven to court. This case is now seven years old and we have not even closed the pleadings. That is scandalous. The parties might say with fairness that not a lot of that is necessarily due to them, a sentiment with which I would agree. We all know where it lies. But there has certainly been exploitative attempts in relation to some of the difficulties.
But I have always tried to emphasise that the lawyers really ought to smooth the way. In my view, this could have been very easily smoothed out; unless, of course, BA have been caught out; in which case, of course, if they had just told me, then I would have come out of the case immediately. But they have not done that.’
Peter Smith J
[2015] EWHC 2201 (Ch)
Bailii
England and Wales
Citing:
See Also – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
See Also – Emerald Supplies Ltd and Another v British Airways Plc CA 18-Nov-2010
. .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and (3513) ChD 28-Oct-2014
A hearing of an Application whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness / lawfulness of the redactions made by the Defendant airline (‘BA’) and other airlines to the . .

Cited by:
Appeal from – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.550890

Emerald Supplies Ltd and Others v British Airways Plc and (3513): ChD 28 Oct 2014

A hearing of an Application whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness / lawfulness of the redactions made by the Defendant airline (‘BA’) and other airlines to the European Commission (‘the EC’) decision of 9th November 2010 in Case/Comp/99258 Air Freight
Peter Smith J
[2014] EWHC 3513 (Ch)
Bailii
England and Wales
Citing:
See Also – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
See Also – Emerald Supplies Ltd and Another v British Airways Plc CA 18-Nov-2010
. .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .

Cited by:
See Also – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .
See Also – Emerald Supplies Ltd v British Airways ChD 22-Jul-2015
The judge was hearing a very substantial action between the parties. He had recently travelled to Italy and came back on one of the defendant’s aircraft. The defendant lost the luggage of all passengers and had failed to deal adequately or at all . .
See Also – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.538052

Lumley v Gye (2): 14 Jan 1854

A commission, under stat. 1 W. 4, c. 22, S. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissiotier went thither, but learned that, by the Prussian law, an oath could be administered to a Prussian subject only by a Prussian judge, or some one authorized by a Prussian Court. On the petition of the cornmissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission beirig opened, D. insisted on assuming the controul of tbe whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission. The commissioner returned these facts: and application was then made, by tha defendant, for a new commission, to be directed to a Prussiam court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared ; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especilly that examination and cross-examination by counsel was not permitted .
[1854] EngR 95, (1854) 3 El and Bl 114, (1854) 118 ER 1083
Commonlii
England and Wales
Citing:
See Also – Lumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.292952

River Wear Commissioners v Adamson: HL 1877

It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is not to legislate, but to declare the expressed intention of the legislature even if that expressed intention appeared to the court to be injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call the Golden rule is right viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary significance unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other significance which though less proper is one which the court thinks the words will bear.’
Lord Blackburn said: ‘I shall . . state, as precisely as I can, what I understand from the decided cases to be the principles on which the courts of law act in construing instruments in writing; and a statute is an instrument in writing. In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; for the meaning of words varies according to the circumstances with respect to which they were used.’ and
‘But it is to be borne in mind that the office of Judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification which, though less proper, is one which the Court thinks the words will bear.’
Lord Blackburn
(1877) 2 App Cas 743
England and Wales
Cited by:
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Power v Provincial Insurance CA 18-Feb-1997
The insured had failed to disclose an earlier drink driving conviction on applying for insurance over five years later. The insurers refused cover on an accident. The plaintiff said that the conviction was spent under the 1974 Act. The endorsement . .
Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Examined – Great Western Railway Co v Mostyn (Owners) HL 1928
The House considered the application of a case precedent where they had been uunable to extract a binding ratio decidendi.
Held: A ratio decidendi cannot be created by aggregating views of minority judges and views of majority judges to secure . .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.187446

Travelers Insurance Company Ltd v Armstrong and Another: CA 1 Jul 2021

Where insurers and insured jointly retain solicitors and a barrister, and can therefore each claim joint retainer privilege (‘JRP’) in the documents created, if the insured assigns its professional negligence claims against the solicitors and barrister to X, is X (as the insured’s successor in title) entitled to disclosure of the files covered by JRP, or does the insurer have the right to claim privilege against the successor in title, thereby preventing X from accessing the documents? The answer would, on the face of it, appear to be plainly in favour of disclosure to X. However, in this case, the issue has become mired in a certain amount of factual complexity and a good deal of suspicion and bitterness between the parties, the consequence of group litigation gone wrong and large amounts of costs which have not been recovered.
[2021] EWCA Civ 978
Bailii
England and Wales

Updated: 14 July 2021; Ref: scu.663571

Good Law Project Ltd and Another v Secretary of State for Health and Social Care: TCC 22 Apr 2021

Claimant’s application for an order that the defendant files and serves the detailed grounds for contesting the claim and any written evidence that is to be relied upon without redacting names of any individuals concerned within 48 hours.
O’Farrell J DBE
[2021] EWHC 1223 (TCC)
Bailii
England and Wales

Updated: 12 July 2021; Ref: scu.663156

Sphere Drake Insurance Ltd and Another v Euro International Underwriting Ltd: ComC 8 Jul 2003

Relationships between Lloyds underwiters and others in the market rather than just names, could also bind the underwriter to a fiduciary relationship. Here the claimant had granted to the defendant a binding authority. This was in effect a similar relationship as would exist between underwriter and name. The defendant wrote business it knew to be contrary to the claimant’s interest and it acted dishonestly.
Thomas J
[2003] EWHC 1636 (Comm), Times 11-Aug-2003, [2003] 1 Lloyd’s Law Reports 525
Bailii
England and Wales
Cited by:
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.184655

Michael Wilson and Partners Ltd v Sinclair and Another (No 2): QBD 28 Apr 2020

Chamberlain J discussed the reactions to his draft judgment: ‘This judgment, exactly as it appears above, was produced in draft in the usual way and sent, under embargo, to the parties for their editorial corrections. Professional lawyers ought to know that the circulation of draft judgments for this purpose should not be taken as a pretext to reargue the case. It has been said on many occasions that an invitation to go beyond typographical and other minor corrections and reconsider the substance should be made only in the most exceptional circumstances: see e.g. Egan v Motor Services (Bath) Ltd (Note) [2008] 1 WLR 1589, [49]-[51] (Smith LJ); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218, [4] (Lord Judge CJ); In Re I (Children) [2019] 1 WLR 5822, [25]-[41]. As King LJ put in in the latter case, at [41], ‘a judge’s draft judgment is not an ‘invitation to treat’, nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings’.’
Chamberlain J
[2020] EWHC 1017 (QB)
Bailii
England and Wales
Citing:
See Also – Michael Wilson and Partners Ltd v Sinclair and Another QBD 24-Mar-2020
. .

Cited by:
Cited – Macom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.650581

Mckillen v Misland (Cyprus) Investments Ltd and Others: ChD 26 Apr 2012

Application by the petitioner and claimant for the continuation during the trial of a confidentiality regime imposed for the purposes of pre-trial steps, particularly disclosure.
David Richards J
[2012] EWHC 1158 (Ch)
Bailii
England and Wales
Citing:
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 2-Feb-2012
Preliminary judgment as to interpretation of shareholder agreement . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 21-Dec-2011
‘prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section.’ . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Another CA 24-Feb-2012
Coroin Limited . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 28-Feb-2012
. .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 5-Mar-2012
Applications by the petitioner and claimant, Patrick McKillen, to make very extensive amendments to his Petition and Particulars of Claim in an associated Part 7 claim, and with an application by one of the respondents to the petition for further . .

Cited by:
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 10-Aug-2012
Re Coroin
The parties battled for the control of major London hotels. The claimant alleged unfair dealings in attempts to secure that control.
Held: David Richards J said that prejudice: ‘will certainly encompass damage to the financial . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others CA 3-Jul-2013
. .
See Also – Misland (Cyprus) Investments Ltd and Another v Mckillen and Another ChD 25-Nov-2014
. .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.458605

Mckillen v Misland (Cyprus) Investments Ltd and Others: ChD 5 Mar 2012

Applications by the petitioner and claimant, Patrick McKillen, to make very extensive amendments to his Petition and Particulars of Claim in an associated Part 7 claim, and with an application by one of the respondents to the petition for further information.
David Richards J
[2012] EWHC 521 (Ch)
Bailii
England and Wales
Citing:
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 2-Feb-2012
Preliminary judgment as to interpretation of shareholder agreement . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 21-Dec-2011
‘prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section.’ . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Another CA 24-Feb-2012
Coroin Limited . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 28-Feb-2012
. .

Cited by:
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 26-Apr-2012
Application by the petitioner and claimant for the continuation during the trial of a confidentiality regime imposed for the purposes of pre-trial steps, particularly disclosure. . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 10-Aug-2012
Re Coroin
The parties battled for the control of major London hotels. The claimant alleged unfair dealings in attempts to secure that control.
Held: David Richards J said that prejudice: ‘will certainly encompass damage to the financial . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others CA 3-Jul-2013
. .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.452447

Realkredit Danmark A/S (a Body Corporate) and Another v York Montague Limited and Others: CA 26 Nov 1998

Although a party had failed to comply with an unless order for discovery, it had still produced a list of over 2500 documents and in the circumstances striking out was too drastic, when the failure to serve was not in bad faith, and the failing was remediable by an appropriate application.
Times 01-Feb-1999, [1998] EWCA Civ 1859
England and Wales

Updated: 09 July 2021; Ref: scu.145338

Hoechst United Kingdom Ltd v Inland Revenue: ChD 11 Apr 2003

If an amendment to a pleading proposes a new claim which does not arise out of the same or substantially the same facts, the court has no discretion and may not allow the amendment.
Park J
[2003] EWHC 1002 (Ch), [2008] BTC 659, [2003] STI 884, [2004] STC 1486
Bailii
England and Wales
Cited by:
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .

These lists may be incomplete.
Updated: 08 July 2021; Ref: scu.342133

Brackenbank Lodge Ltd v Peart and Others: HL 26 Jul 1996

The court overturned the decision of the Court of Appeal following the discovery of a very ancient report of a court hearing on the same issues. The Peart defendant had failed to disclose to his lawyers the existence of the judgment, and he should expect to be penalised in the costs of all parties.
Times 26-Jul-1996
England and Wales
Citing:
Appeal from – Brackenbank Lodge Ltd v Peart and Others CA 4-Jun-1993
A right to stint, a grazing right, defeated an assertion of an interest in the freehold, and the stint holders were awarded a proprietary interest in the moor as tenants in common. . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.78537

PJSC Tatneft v Bogolyubov and Others: ComC 24 Nov 2020

Judgment on the application by the second defendant as to:
(i) whether or not there has been a waiver of privilege in respect of matters identified and, if so, the scope of such waivers;
(ii) if there has been a waiver of privilege, the second defendant seeks a declaration to that effect and, in respect of certain of the matters identified, an order for inspection of documents withheld.
Mrs Justice Moulder
[2020] EWHC 3225 (Comm), [2021] 1 WLR 1612, [2020] WLR(D) 682
Bailii, WLRD
England and Wales
Citing:
See Also – PJSC Tatneft v Bogolyubov and Others ComC 13-Nov-2020
Judgment on application to admit witness statement . .

These lists may be incomplete.
Updated: 06 July 2021; Ref: scu.657584

Garcia v Garcia: QBD 5 May 2021

Case about the fundamental importance of a claimant, including a litigant in person, providing an accurate and truthful picture to the urgent applications Court, when seeking interim mandatory orders.
[2021] EWHC 1175 (QB)
Bailii
England and Wales

Updated: 03 July 2021; Ref: scu.663335

Messier-Dowty Ltd and Another v Sabena Sa and others: ComC 3 Dec 1999

Application by 2 and 3 defendants for an order suspending proceedings in England pending production and consideration of expert report. Whether, pursuant to Supreme Court Act 1981 s. 49(3) and CPR 3.1(2)(f), there were ‘compelling circumstances’ required to justify the Court making an order to stay proceedings.
Langley J
[1999] EWHC 282 (Comm), [2001] WLR 2040
Bailii
England and Wales
Cited by:
Appeal from – Messier-Dowty Ltd and Another v Sabena Sa and Others CA 21-Feb-2000
The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court . .
Cited – Point Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005
It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The . .

These lists may be incomplete.
Updated: 30 June 2021; Ref: scu.201665

Gawler v Raettig: CA 3 Dec 2007

The parties had resolved their claims of negligence, but asked the court to set the level of contributory negligence even though the appeal was academic.
Held: The court refused leave to appeal, but stated that its judgment could be reported. Sir Anthony Clarke MR concluded: ‘Thus the court was of the view (in Bowman v Fels) that, even though the litigation was private, if it was in the public interest to entertain the appeal, the court would be free to do so. This seems to me at bottom to be the correct approach. However, although as has been observed several times, the case involved public law duties, I do not read it as limiting the exception to each case, provided that the hearing of the appeal is in the public interest.’ and approved Professor Zuckerman who said : ‘In sum, the hearing of appeals that are no longer determinative of the rights of the parties will depend on whether the matter is of general public interest and whether entertaining an appeal is the most effective way of resolving the issue and promoting the overriding objective.’ He continued: ‘the court will not entertain an appeal between private parties in private litigation unless it is in the public interest to do so. Moreover, this is likely to be a very rare event, especially where the rights and duties to be considered are private and not public. Indeed, so far as I am aware, if we permitted this appeal to proceed, it would be the first case in which the court had ever considered such an appeal, since (as stated above) Bowman v Fels was a case involving an issue of public law.
All will depend upon the facts of the particular case . . ‘
Sir Anthony Clarke MR
2007 WL 5116827, [2007] EWHC Civ 373
Bailii
England and Wales
Cited by:
Cited – Stanton v Collinson QBD 2-Mar-2009
The claimant was severely injured when a car driven by the defendant crashed. No-one was wearing a seat belt. The driver died. The driver’s estate argued that the claimant was contributorily negligent in not wearing a seat belt. The claimant said . .
Cited – Stanton v Collinson QBD 2-Mar-2009
The claimant was severely injured when a car driven by the defendant crashed. No-one was wearing a seat belt. The driver died. The driver’s estate argued that the claimant was contributorily negligent in not wearing a seat belt. The claimant said . .
Cited – Hutcheson v Popdog Ltd and Another CA 19-Dec-2011
The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
Held: Leave to appeal was . .
Main Appeal – Gawler v Raettig (Leave) CA 3-Dec-2007
Application for leave to appeal. . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.322733

Gawler v Raettig (Leave): CA 3 Dec 2007

Application for leave to appeal.
Sir Anthony Clark MR, Wall, Smith LJJ
[2007] EWCA Civ 1560
Bailii
England and Wales
Citing:
Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Main Appeal – Gawler v Raettig CA 3-Dec-2007
The parties had resolved their claims of negligence, but asked the court to set the level of contributory negligence even though the appeal was academic.
Held: The court refused leave to appeal, but stated that its judgment could be reported. . .

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 . .
Cited – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
See Also – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.341673

Business Computers International Ltd v Registrar of Companies: ChD 1988

A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved the petition in negligence in respect of the losses said to have been sustained as a result of the order.
Held: The claim failed.
There is an inherently antagonistic relationship between adverse litigants which makes it inappropriate for the law to recognise a duty of care by one adverse party, or his legal representative, to another party. The safeguards in such a case must be found in the rules and procedures that govern litigation.
Scott J said: ‘Is it just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process? I do not think that it is. The plaintiff and the defendant, the petitioner and the respondent, are antagonists. The plaintiff, or the petitioner, is seeking a legal remedy in an adversarial system. The system stipulates the rules and requirements that must be observed by the two parties. The plaintiff must issue his process and must serve it on the defendant. If there is default in service the process must be struck out. If an order is obtained without the prescribed rules or regulations having been observed, the order may be discharged or set aside, sometimes by an application at first instance, sometimes on appeal. The prosecution of the action or of the petition is subject throughout its career from institution to final judgment to judicial control. Service of process is a step, in the prosecution. It must usually be proved before an order can be obtained against an absent defendant. The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd. The safeguards against ineffective service of process ought to be, and I think must be, found in the rules and procedures that govern litigation. The rules and procedures require that, save on ex parte applications, proof of service be shown before an order is made against an absent party. If the proof of service is false, be it through negligence or design, an order may be made that should not have been made. The injured party’s remedy is to have the order set aside. An action for damages cannot be based on the falsity of the proof of service. Nor, in my judgment, can the adequacy of the efforts made to effect service be subjected to a tortious duty of care.’ and ‘In my judgment, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort. I am therefore of opinion that the plaintiff’s statement of claim does not disclose a reasonable cause of action against the second defendant and ought to be struck out.’
Scott J
[1988] Ch 229, [1987] 3 All ER 465, [1987] 3 WLR 1134
England and Wales
Cited by:
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
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 – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.192633

English and American Insurance Co Ltd and Others v Herbert Smith: ChD 1987

Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse.
Browne-Wilkinson VC J
(1987) NLJ 148, Times 22-Jan-1987, [1988] FSR 232
England and Wales
Citing:
Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Cited by:
Cited – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193603