Category: Litigation Practice

Lifely v Lifely: CA 30 Jul 2008

Unusually the court of appeal heard fresh oral evidence to assist in determing the appeal. Diaries had been discovered only after the trial, and the contents were of direct relevance. Ladd v Marshall might allow oral evidence on appeal in exceptional circumstances.
Lord Justice Ward, Lord Justice Sedley and Lord Justice Stanley Burnton
[2008] EWCA Civ 904, Times 27-Aug-2008
Bailii
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

These lists may be incomplete.
Updated: 22 June 2021; Ref: scu.271262

Leofelis Sa and Another v Lonsdale Sports Ltd and others: CA 1 Jul 2008

Claim for breaches of trade mark licence agreements.
Held: Where the documentation which would otherwise be supplied to the Court of Appeal under the existing practice directions would be substantial, it was open to the parties working together and with appropriate directions from the court to reduce the size of the bundles.
Lord Justice Waller, Lord Justice Keene and Lord Justice Lloyd
[2008] EWCA Civ 640, Times 23-Jul-2008, [2008] ETMR 63
Bailii
England and Wales

Updated: 22 June 2021; Ref: scu.270532

Kerner v WX and Another: QBD 6 May 2015

The claimant’s husband had been convicted for sexual activity with a child while in a position of trust. She now sought continuation of an anti-harassment injunction against news photographers taking pictures of her whilst in public with her children. There had been a new campaign after she wanted to continue her own work as a teacher and continued to live with her husband.
Held: An order would be made for the DVLA to disclose the identity of the owner of a vehicle associated with the harassment.
Warby J
[2015] EWHC 1247 (QB)
Bailii
England and Wales
Citing:
See Also – Kerner v WX and Another QBD 29-Jan-2015
Application for continuation of anti-harassment injunction against persons unknown. . .

These lists may be incomplete.
Updated: 22 June 2021; Ref: scu.546421

London Partners Capital Management Llp v Utkan and Another: ChD 16 Jun 2021

Application on behalf of the Third Defendant by correspondence, for amendments to a search and imaging order (i) to remove the supervising solicitor with immediate effect, and (ii) to direct the Claimant/ Search Order Applicant to deliver up forthwith certain disputed documents and delete all copies of those documents.
Mr Justice Henshaw
[2021] EWHC 1647 (Ch)
Bailii
England and Wales

Updated: 22 June 2021; Ref: scu.663392

Mayne Pharma Pty Ltd Another v Debiopharm Sa and Another: PatC 10 Feb 2006

Defendant’s application in patent revocation claims
Pumfrey J
[2006] EWHC 164 (Pat)
Bailii
England and Wales
Citing:
Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.242719

Dulson v Popovych: QBD 8 Jun 2021

Application by the Defendant pursuant to CPR 17.1(2) and PD 14 Paragraph 7 to resile from an admission of breach of duty, made in the Defence in this claim, to amend the Defence (to plead a denial inter alia to the allegations of breach of duty with respect to a 2 week wait referral); and to extend time for service of medical evidence.
HHJ Nigel Lickley QC sitting as a Deputy Judge of the High Court
[2021] EWHC 1515 (QB)
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.663355

Ward and Others v Savill: CA 14 May 2021

The issue on this appeal is whether the appellants can rely upon a declaratory judgment granted to them in earlier proceedings, to which the respondent was not a party, to found claims against her in the present proceedings.
Sir Julian Flaux C
[2021] EWCA Civ 1378
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.662483

Mechanical and General Inventions Co. and Lehwess v Austin and the Austin Motor Co: HL 1935

Lord Hanworth MR discussed the general nature of cross-examination, saying: ‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skilful, yet powerful, cross-examination.’
Determining whether the jury verdict was reasonable, does not mean, Lord Wright said: ‘whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty’ and ‘For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury; that would be quite wrong.’
Lord Hanworth MR, Lord Wright
[1935] AC 346
England and Wales
Cited by:
Cited – Regina v Wakely 7-Jun-1990
(High Court of Australia) The defendants appealed against their convictions, saying that their cross examinations had been improperly restricted by the judge at trial.
Held: The court considered the limit of permissible cross-examination. . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.470724

O’Rourke v Darbishire: HL 1920

Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own benefit, with a precatory expression of his wishes that it should be used for charitable purposes. Two further codicils 1886 extended the first codicil’s gift to the executors. Sir Joseph’s intestate successors would have been Mrs Uniacke (as to realty) and Mrs Uniacke and Mrs McGowan (as to personalty). Mrs McGowan threatened to challenge the will and codicils, but in 1889 there was a compromise between all interested parties. In 1916, after Mrs Uniacke, Mrs McGowan and the executors had all died, Mrs Uniacke’s administrator (Mr O’Rourke) sought to challenge both the will and codicils and the compromise, alleging fraud by Mr Darbishire (who was one of the executors and had been Sir Joseph’s solicitor). Mr O’Rourke sought disclosure of documents containing legal advice given to Sir Joseph during his lifetime, and to his executors after his death.
Held: The House dismissed Mr O’Rourke’s appeal. He had not made out even a prima facie case that the will and codicils were invalid, or that the communications had promoted fraud. Mr O’Rourke’s relied on a ‘proprietary right’. A cestui que trust, in an action against his trustees, is generally entitled to the production for inspection of all documents relating to the affairs of the trust. It is not material whether this is seen as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.
Viscount Finlay, Lord Sumner, Lord Parmoor
[1920] AC 581, [1920] All ER 1
England and Wales
Cited by:
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.180360

The Claimants Set Out In Schedule 1 To The Claim Form v Spence and Others: ComC 16 Apr 2021

Application the First Defendant, and the Second Defendant, to vary the level of fortification provided by the Claimants in the context of a worldwide freezing injunction granted against the First, Second, and Third Defendants without notice.
Mrs Justice Moulder
[2021] EWHC 925 (Comm)
Bailii
England and Wales

Updated: 15 June 2021; Ref: scu.662358

Lownes v Babcock Power Limited: CA 11 Feb 1998

Where a substantial delay by a solicitor leads to an unless order and puts his client at risk of having case his dismissed, the solicitor should ensure that independent advice is given. An ‘unless order’ is preliminary to a striking out order.
Times 19-Feb-1998, Gazette 08-Apr-1998, [1998] EWCA Civ 211, [1998] TLR 84
England and Wales
Cited by:
Cited – Keith Walker v Wolferstans (a Firm) CA 10-Mar-1999
The plaintiff sought damages against the defendants for having allowed his claim to the Criminal Injuries Compensation Board to fail by limitation. He now sought leave to appeal out of time after his claim was struck out for failure to comply with . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.143689

Ameyaw v McGoldrick and Others: QBD 9 Jul 2020

Application for oral hearing of certain issues.
Mrs Justice Steyn
[2020] EWHC 1924 (QB)
Bailii
England and Wales
Citing:
See Also – Ameyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.652407

Alexander Brothers Ltd (Hong Kong Sar) v Alstom Transport Sa and Another: ComC 18 Jun 2020

Application of the Defendants to set aside the without notice Order enforcing an arbitration award in favour of the Claimant on the basis that it was contrary to public policy; alternatively for a trial of the public policy issue: failure to make full and frank disclosure on the without notice application and underlying consultancy agreements tainted by illegality in ABL’s performance.
Mrs Justice Cockerill
[2020] EWHC 1584 (Comm), [2020] WLR(D) 375
Bailii, WLRD
England and Wales

Updated: 14 June 2021; Ref: scu.652426

Alex Lawrie Factors Limited v Morgan and Others: CA 5 Jul 1999

A statement of truth or affidavit must reflect the words and thoughts of the witness who signed it. It is not appropriate to include matters about which the witness could not themselves give evidence, including particularly complex arguments sought to be presented by the party’s lawyer.
Times 18-Aug-1999, [1999] EWCA 1758
England and Wales
Citing:
Cited – Carlisle and Cumberland Banking Company v Bragg 1911
A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document.
Held: There could not be negligence in the execution of a document unless a duty was owed . .

Cited by:
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.146673

Ansari and Another v Barclays Bank Plc: CA 19 Dec 1997

The appellant sought leave to appeal an order striking out their claim against the bank. There had been considerable litigation. They had executed charges supporting personal guarantees, in support of loan agreements in favour of the company of which they were directors. The bank had called in the loan and sought to enforce the charge.
Held: Parts of the action were res judicata from the earlier proceedings. The balance was subject to issue estoppel. Leave was refused.
Lord Justice Simon Brown, Mrs Justice Hale
[1997] EWCA Civ 3055
England and Wales
Citing:
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.143454

Pipia v BGEO Group Ltd: ComC 20 Jan 2021

This application is one for further Extended Disclosure under the Disclosure Pilot. The focus of the application is email correspondence and the contents of the mobile phones of two key witnesses.
It arises in the context of a claim where the Claimant (‘Mr Pipia’) claims that through a series of cunning transactions orchestrated by the Defendant (‘BG UK’), he was unlawfully deprived of a Georgian fertiliser plant worth hundreds of millions of dollars. BG UK denies any wrongdoing – indeed, any involvement in the events subject to this dispute.
Mrs Justice Cockerill DBE
[2021] EWHC 86 (Comm)
Bailii
England and Wales

Updated: 11 June 2021; Ref: scu.657532

Behrens v Sieveking: 4 May 1837

A plea of proceedings in another Court of competent jurisdiction must shew, not only that the same issue was joined as in the suit in this Court, but that the subject matter was the same, arid that the proceedings in the other Court were taken for the same purpose.
[1837] EngR 694, (1837) 2 My and Cr 602, (1837) 40 ER 769 (A)
Commonlii
England and Wales

Updated: 09 June 2021; Ref: scu.313811

Watts v Watts: 17 Dec 1859

Plaintiff was tenant for life, with contingent remainders to his children, with remainder to a Defendant for life, with contingent; remainder to his first son who should attain twenty-one and survive him. After bill filed and before decree the Defendant’s eldest son was born, After decree Plaintiff died without having had any issue.
On an application on behalf of the infant son of the Defendant for a revivor order :
Held, that a bill in the nature of a bill of supplement and revivor was necessary.
[1859] EngR 1106 (B), (1859) Johns 631
Commonlii
England and Wales

Updated: 09 June 2021; Ref: scu.288458

Hoskins v Wiggins Teape (UK) Limited: CA 1994

The plaintiff had delayed the action. It had been transferred from the High Court in July 1991, and was then automatically struck out. The plaintiff sought re-instatement.
Held: The court attempted to put into proper context the problems that oversights give in applying discretions. An oversight by a practitioner cannot, by its very nature, be ordinarily excusable.
Sir Thomas Bingham MR said: ‘I repeat, and I hope that it is clearly understood, that it is a necessary pre-condition that an applicant should be able to show that the action has been conducted with reasonable diligence and the question as to whether the failure can be excusable only arises if that condition is overcome.’
Simon Brown LJ, Sir Thomas Bingham MR
[1994] PIQR 377
England and Wales
Cited by:
Cited – Dowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
Cited – Reville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
Cited – Meon Valley Engineering Limited v Reinforced Plastic Products Limited CA 19-Feb-1997
. .
Allowed for – Bannister v SGB Plc and others and 19 Other Appeals CA 25-Apr-1997
Detailed guidance was given as to several different problems of interpretation of Order 17 r 11, dealing with automatic directions. Definitive guidelines were given for the interpretation of automatic directions and strike out provisions in the . .
Cited – Burton Mason and Wilson (a Firm) v Riley and Riley CA 21-Aug-1997
. .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.196534

Kuwait Airways Corporation v Iraqi Airways Company (No 6): CA 16 Mar 2005

The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: The ‘fraud exception which would deny the protection of privilege applied both to litigation privilege and to legal advice privilege, but the fraud had to be one of the pleaded issues and there had to be strong proof of the fraud. ‘the fraud exception can in principle apply even when litigation has begun with the result that privilege will not attach to documents which further the fraud or the criminal purpose.’ though the court would be careful in exercising this jurisdiction. In summary ‘(1) the fraud exception can apply where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege; (2) nevertheless it can only be used in cases in which the issue of fraud is one of the issues in the action where there is a strong (I would myself use the words ‘very strong’) prima facie case of fraud as there was in Dubai Aluminium v Al-Alawi and there was not in Chandler v Church; (3) where the issue of fraud is not one of the issues in the action, a prima facie case of fraud may be enough as in Hallinan.’ Appeal dismissed.
Ward, Longmore LJJ
[2005] EWCA Civ 286, Times 25-Apr-2005, [2005] 1 WLR 2734
Bailii
England and Wales
Citing:
See Also – Kuwait Airways Corporation v Iraqi Airways Company ComC 31-Jul-2002
. .
Appeal from – Kuwait Airways Corp v Iraqi Airways Co 16-Feb-2005
The claimants sought an order requiring disclosure by the defendants of the documents in their list of documents which they said had the benefit of litigation privilege.
Held: A fraud had been alleged which had been used by the defendants in . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Kuwait Airways Corp v Iraqi Airways Company ComC 24-Jan-2003
The court found that the defendant had brought false evidence and forged documents to seek to persuade the English court that it had state immunity, and had been partially successful, but that on the true facts it was not immune from the . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions 1988
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited – Hallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
Cited – Omar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Approved – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
Cited – Chandler v Church 1987
(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the . .
Cited – Regina v Derby Magistrates Court Ex Parte B QBD 31-Oct-1994
A solicitor was correctly required by the court to produce his client attendance notes from the conduct of the defence for a client previously acquitted of murder for use in a trial of a later Defendant. . .
Cited – Barclays Bank Plc v Eustice CA 6-Jul-1995
No Professional Privilege in Iniquity
There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with . .

Cited by:
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.223579

In re State of Norway’s Application (No 1): CA 1987

There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United Kingdom. Each was a person with a relationship to the trust or to the company that justified the expectation that he could give relevant evidence on the issue in question.
Held: The request amounted to an impermissible fishing expedition and should not be accepted.
On the fishing point, Kerr LJ said:- ‘although ‘fishing’ has become a term of art for the purposes of many of our procedural rules dealing with applications for particulars of pleadings, interrogatories and discovery, illustrations of the concept are more easily recognised than defined. It arises in cases where what is sought is not evidence as such, but information which may lead to a line of inquiry which would disclose evidence. It is the search for material in the hope of being able to raise allegations of fact, as opposed to the elicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularisation. In the present context fishing may occur in two ways. First, the ‘evidence may be sought for a preliminary purpose, such as the process of pre-trial discovery in the United States.’ This is impermissible for the 1975 Act. A ‘fishing expedition ‘ ‘is perhaps best described as a roving inquiry, by means of the examination and cross-examination of witnesses, which is not designed to establish by means of their evidence allegations of fact which have been raised bona fide with adequate particulars, but to obtain information which may lead to obtaining evidence in general support of a party’s case’ The application was dismissed (Ralph Gibson dissenting)
Kerr LJ, Glidewell LJ, Ralph Gibson LJ
[1987] 1 QB 433
Evidence (Proceedings in Other Jurisdictions) Act 1975
England and Wales
Citing:
Cited – In re Westinghouse Uranium Contract HL 1978
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory . .
Cited – Radio Corporation of America v Ranland Corporation 1956
The 1856 Act cannot be used to allow a fishing expedition for evidence. The court distinguished between ‘a process by way of discovery and testimony for that purpose’ and ‘testimony for the trial itself’. . .
Cited – Senior v Holdsworth 1976
A subpoena requiring the production of documents had been served.
Held: A witness ought not to be required to comply with a letter of request if it appeared to the court ‘that the request is irrelevant, or fishing, or speculative, or . .

Cited by:
Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Appeal from – In re Norway’s Applications HL 1990
The house considered appeals from the two earlier applications, upholding the first and reversing the second. . .
Appeal from – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
See Also – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.188695

United States of America v Philip Morris Inc and others: QBD 10 Dec 2003

Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of professional legal privilege.
Held: Before legal advice privilege can be claimed in respect of any communication three conditions must be satisfied: (i) the communication must pass between the lawyer and his client; (ii) it must be confidential; and (iii) it must be for the dominant purpose of obtaining or giving legal advice.
The Honourable Mr. Justice Moore-Bick
[2003] EWHC 3028 (Comm)
Bailii
England and Wales
Citing:
Cited – In the Matter of a Civil Matter Now Pending In District Court for Second Judicial District, County of Ramsey, State of Minnesota CA 30-Jul-1997
When considering an application under the 1975 Act, the court must not only observe the restrictions imposed by the 1975 Act; it must also hold a fair balance between the interests of the requesting court and the interests of the witness. ‘because . .
Cited – Genira Trade and Finance Inc v CS First Boston and Standard Bank (London) Limited CA 21-Nov-2001
The court considered the circumstances under which it could be called upon to assist a foreign court.
Held: It is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Re Highgrade Traders CA 1984
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect. . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – Barclays Bank Plc v Eustice CA 6-Jul-1995
No Professional Privilege in Iniquity
There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with . .
Cited – In re State of Norway’s Application (No 1) CA 1987
There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United . .
Cited – In re Norway’s Applications HL 1990
The house considered appeals from the two earlier applications, upholding the first and reversing the second. . .
Cited – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

Cited by:
Appeal from – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.188687

Whitehead v Avon County Council (1): CA 3 May 1995

A personal injury claimant may not insist on a friend’s presence at an examination by the doctor instructed by defendants.
Times 03-May-1995
County Court Rules 1981 17.1
England and Wales
Cited by:
See Also – Whitehead v Avon County Council (2) CA 10-Feb-1997
The automatic directions timetable ceases to run on the stay of proceedings; a date was needed. Automatic directions were ousted if an order was made staying the action, even if it was likely that the stay would only be a temporary one. The . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.90474

Thomas Watts and Co (Suing As a Firm) v Smith: CA 14 Oct 1996

Adjourned application for leave to appeal against order for security for costs of appeal.
Nourse LJ, Auld LJ, Russell LJ
[1996] EWCA Civ 720
England and Wales
Cited by:
See Also – Thomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.140587

Her Majesty’s Attorney General v Menzies: CA 4 Jun 1997

The appellant appealed an order declaring him a vexatious litigant. He had been involved in a whole series of attempts to set aside a judge’s decision from 1990. He asserted that the party who had made the application for the declaration, the Attorney General, was the very party whose actions had interfered with his attempts to obtain justice. In the circumstances the refusal to give him leave to apply for leave for judicial review was to be allowed to go ahead, and the current proceedings were adjourned to allow this to go ahead.
[1997] EWCA (Civ) 1777
Supreme Court Act 1981 42
England and Wales

Updated: 09 June 2021; Ref: scu.142173

Home Office v Tariq: SC 13 Jul 2011

The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided with evidence unseen by the claimant. Each party appealed against an order allowing evidence to be given on a ‘gist’ basis -between the provision to the claimant of full details of the defendant’s evidence and of none.
Held: The Home Secretary’s appeal succeeded, and the cross appeal was rejected (Lord Kerr dissenting). The rights asserted were ones created under European law, and therefore the court must ask whether the answers provied by the Regulations satisfied the duties to ensure respect for those rights. In European Law, the use of a closed material procedure by the Employment tribunal was lawful, and the claimant’s appeal was dismissed.
It was not correct that the claimant knew nothing at all of the nature of the objections to his employment. They had been stated in general terms.
The Court of Appeal’s decision had not had the case of Kennedy before it. There are competing rights and duties, and a balance to be struck particular to the circumstances.
Lord Hope said there are ‘no hard edged rules in this area of the law . . the principles that lie at the heart of the case pull in different directions. It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them. I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office.’
Lord Kerr said that the witholding of information deployed before a court from one party was a breach of the fundamental right to a fair trial. That could be achieved only by the clearest of legislative provisions.
Lord Mance JSC distinguished those cases involving liberty from others: ‘the reasoning in para 217 of the European Court of Human Rights’ judgment in A v United Kingdom emphasises the context of that decision, the liberty of the individual. Detention, control orders and freezing orders impinge directly on personal freedom and liberty in a way to which Mr Tariq cannot be said to be exposed. In R (AHK) v Secretary of State for the Home Department (Practice Note) [2009] 1 WLR 2049, a claim for judicial review of the refusal of an application for British citizenship, the Court of Appeal distinguished A v United Kingdom on the ground that it was focusing on detention. In my opinion, it was justified in making this distinction. An applicant for British citizenship has, of course, an important interest in the appropriate outcome of his or her application. Mr Tariq also has an important interest in not being discriminated against which is entitled to appropriate protection; and this is so although success in establishing discrimination would be measured in damages, rather than by way of restoration of his security clearance (now definitively withdrawn) or of his position as an immigration officer. But the balancing exercise called for in para 217 of the judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself. ‘
Lord Dyson JSC, citing previous case law, distinguished between the absolute right to a fair trial and the constituent elements of a fair trial process, which are not absolute or fixed.
Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Kerr , Lord Clarke, Lord Dyson
[2011] UKSC 35, UKSC 2010/0106, [2011] UKHRR 1060, [2012] 1 AC 452, [2011] 3 WLR 322, [2012] 1 All ER 58, [2012] 1 CMLR 2, [2011] IRLR 843, [2011] HRLR 37, [2011] ICR 938
Bailii, Bailii Summary, SC, SC Summary
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) 54, Employment Tribunals Act 1996 10(6)
England and Wales
Citing:
At EAT – Tariq v The Home Office EAT 16-Oct-2009
EAT PRACTICE AND PROCEDURE
Disclosure
HUMAN RIGHTS
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
Appeal from – Home Office v Tariq CA 4-May-2010
The claimant began proceedings against his employer, the Immigration Service after his security clearance was withdrawn. He complained that the respondent had been allowed by the Tribunal to present evidence he was not himself allowed to see and . .
Cited – Peterbroeck, Van Campenhout and Cie v Belgian State ECJ 14-Dec-1995
It is a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant European law right: ‘For the purposes of . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Commission v Italy (Law Relating To Undertakings) ECJ 8-Apr-2008
Europa Failure of a Member State to fulfil its obligations Public supply contracts Directives 93/36/EEC and 77/62/EEC Award of contracts without prior publication of a notice ‘Agusta’ and ‘Agusta Bell’ . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Cited – Unibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 13-Mar-2007
(Grand Chamber) Principle of judicial protection National legislation not providing for a self-standing action to challenge the compatibility of a national provision with Community law Procedural autonomy Principles of equivalence and effectiveness . .
Cited – Kadi v Commission ECFI 30-Sep-2010
ECFI Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – . .
Cited – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
Cited – Organisation Des Modjahedines Du Peuple D’Iran v Council (Common Foreign And Security Policy) ECFI 12-Dec-2006
ECFI Common foreign and security policy – Restrictive measures directed against certain persons and entities with a view to combating terrorism – Freezing of funds – Action for annulment – Rights of the defence – . .
Cited – A and Others v The United Kingdom ECHR 19-Feb-2009
a_ukECHR022009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally prompted the . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Esbester v United Kingdom ECHR 2-Apr-1993
(Commission) The claimant had been refused employment within the Central Office of Information. He had been accepted subject to clearance, but that failed. He objected that he had been given no opportunity to object to the material oin which his . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – Vilho Eskelinen And Others v Finland ECHR 19-Apr-2007
Even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes. . .
Cited – Kennedy v United Kingdom ECHR 18-May-2010
The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to . .
Cited – Secretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .
Cited – Uzukauskas v Lithuania ECHR 6-Jul-2010
ECHR The applicant had a licence for a pistol and rifle. His was refused another licence, and then the existing licence was withdrawn. His name had been included in a police list in an operational records file . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Carnduff v Inspector Rock and Chief Constable West Midlands Police CA 11-May-2001
The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information . .

Cited by:
Cited – Al-Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.441628

Dickson Apothecary v L Coldingknows: SCSf 15 Jul 1024

The verity of a libel being referred to a defender’s oath, the Lords found the pursuer could not exclude the defender from deponing, by a horning.
In an action pursued by Thomas Dickson apothecary, contra the L Coldingknows, where the summons being admitted to the pursuer’s probation, and referred to the defender’s oath of verity simpliciter, and at the terms assigned to that effect, the defender offering to depone, Turcu confessed, being rebel. The Lords found, That in this, and the like cases, the pursuer could not exclude the defender to depone, nor obtrude horning against him to debar him, seeing he craved his oath for his probation, and had warned him to compear to give his oath; and therefore could not refuse that whereof he himself had made election, and which was desired by him; and so the horning was not admitted, in respect it was a severe consequence to hold the defender pro confesso upon a libel which might possibly contain more than the defender was worth being so debarred, and there being no other probation; but it is to be adverted, that in all the causes almost, where parties defenders are summoned, this reason may exclude all pursuers to debar the defenders by horning; for it may be alleged, that seeing they are summoned to hear decreets given against them, or else to allege a cause in the contrary; by the same reason, they may say, that seeing he is summoned to allege a cause why the pursuer should not have his intent, he ought not to be debarred by horning to propone lawfully that which by the pursuers summons is permitted to him to do; and in these cases, the defenders not the less may be debarred by hornings.
[1024] Mor 10153
Scotland

Updated: 30 April 2021; Ref: scu.547555

Dickson Apothecary v L Coldingknows: SCS 15 Jul 1024

The verity of a libel being referred to a defender’s oath, the Lords found the pursuer could not exclude the defender from deponing, by a horning.
In an action pursued by Thomas Dickson apothecary, contra the L Coldingknows, where the summons being admitted to the pursuer’s probation, and referred to the defender’s oath of verity simpliciter, and at the terms assigned to that effect, the defender offering to depone, Turcu confessed, being rebel. The Lords found, That in this, and the like cases, the pursuer could not exclude the defender to depone, nor obtrude horning against him to debar him, seeing he craved his oath for his probation, and had warned him to compear to give his oath; and therefore could not refuse that whereof he himself had made election, and which was desired by him; and so the horning was not admitted, in respect it was a severe consequence to hold the defender pro confesso upon a libel which might possibly contain more than the defender was worth being so debarred, and there being no other probation; but it is to be adverted, that in all the causes almost, where parties defenders are summoned, this reason may exclude all pursuers to debar the defenders by horning; for it may be alleged, that seeing they are summoned to hear decreets given against them, or else to allege a cause in the contrary; by the same reason, they may say, that seeing he is summoned to allege a cause why the pursuer should not have his intent, he ought not to be debarred by horning to propone lawfully that which by the pursuers summons is permitted to him to do; and in these cases, the defenders not the less may be debarred by hornings.
[1024] Mor 10153
Scotland

Updated: 28 March 2021; Ref: scu.547555

London Borough of Enfield v Sivanandan: CA 29 Jun 2006

Application for civil restraint order.
[2006] EWCA Civ 888
Bailii
England and Wales
Citing:
See Also – Sivanandan v London Borough of Enfield EAT 1-May-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Oct-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Feb-1999
. .
See Also – Sivanandan v Enfield and others EAT 25-Apr-2001
. .
See Also – Sivanandan v Enfield and Another EAT 11-Jul-2001
. .
See Also – Sivanandan v Enfield and others EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and Another EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 23-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v London Borough of Enfield and others CA 7-Oct-2002
. .
See Also – London Borough of Enfield v Sivanandan QBD 5-Apr-2004
. .
See Also – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
See Also – London Borough of Enfield v Sivanandan EAT 12-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – Striking-out/dismissal. . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.242966

Corocraft Ltd v Pan American Airways Inc: 1969

In the event of inconsistency between the French and English versions of the Convention, the French text prevails.
Donaldson J
[1969] 1 QB 616
Warsaw-Hague Convention
England and Wales
Cited by:
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 – Fujitsu Computer Products Corp and others v Bax Global Inc and others ComC 9-Nov-2005
A substantial number of hard disk drives were to be transported by the defendants by air. They were stolen. The defendant sought to limit its liability onder the Act. The claimant said it had been an inside job within Bax. . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.225200

Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another: CA 25 Oct 2011

The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the matter was a criminal one. The application was made after what was clearly a criminal matter, but the claimant argued that the application itself was a civil one. The authorities were confusing and the law unclear. The court found that the application though made in criminal proceedings, itself was wholly collateral to those extradition proceedings. The Court of Appeal did therefore have jurisdiction: ‘any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court, but I believe that, consistently with the spirit of the approach in The Great Peace [2003] QB 679, the best way of applying the ‘rather tangled’ jurisprudence developed over the past thirty-five years, and ensuring maximum coherence (or maybe it is more realistic to say, minimum incoherence) is to hold that we have jurisdiction to hear the appeal.’ In view of the arguments raised, leave was granted.
Lord Neuberger MR, Jackson, Aikens LJJ
[2011] EWCA Civ 1188, [2012] EMLR 11, [2012] CP Rep 5, [2011] 1 WLR 3253
Bailii
Supreme Court Act 1981 18(1)
England and Wales
Citing:
Cited – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
The refusal of an application for habeas corpus by a person committed to prison with a view to extradition was a decision in a ‘criminal cause or matter.’
Viscount Simon LC said said that the: ‘distinction between cases of habeas corpus in a . .
Appeal from – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court Admn 21-Dec-2010
The claimant appealed against a refusal by the magistrate to allow access to documents filed during proceedings when the court felt that all relevant matters had been discussed openly and in detail in court.
Held: The appeal failed, and the . .
Cited – United States of America, Regina (on the Application of) v Bow Street Magistrates’ Court Admn 6-Sep-2006
The defendant a serving prisoner sought an adjournment of his extradition to a time closer to the end of the sentence he was to serve in England.
Held: The court had sympathy with the argument that where the district judge is being invited to . .
Doubted – Regina v Southampton Justices ex parte Green CA 1976
The court considered whether as the Court of Appeal, it had jurisdiction to hear an appeal against the Divisional Court’s refusal to quash an order estreating a recognisance.
Held: It did. Lord Denning MR said that ‘the matter is criminal’ if . .
Cited – Carr v Atkins CA 1987
The police had applied to a judge for an order under the 1984 Act requiring the applicant, a suspect in a fraud investigation, to produce documents falling within the definition of ‘special procedure documents’ under the Act. The applicants sought . .
Cited – In re Smalley HL 1985
Challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. A sensible legislative purpose can be seen for . .
Cited – Regina v Sheffield Crown Court ex parte Brownlow CA 1980
Two police officers were being brought to trial, charged with assault occasioning bodily harm. They applied to the trial judge for an order directing the prosecution to inform the defence whether any members of the jury panel had criminal . .
Cited – Regina v Lambeth Metropolitan Stipendiary Magistrate ex parte McComb CA 1983
The Court found that it had jurisdiction to entertain an appeal against the Divisional Court’s upholding of a decision that the Director of Public Prosecutions could freely remove exhibits, lodged in the Crown Court in criminal proceedings against . .
Cited – Regina v Waterfield QBD 1975
The defendant was convicted of importing pornographic films and magazines. One ground of appeal was that the proceedings were a nullity because the press and public had been excluded from the court room during the showing of the films.
Held: . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
a_independentCA2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – Day v Grant (Note) CA 1985
(January 1985) The court must look to the underlying nature of the proceedings in which the order was made and against which an appeal was sought to see to which court an appeal lay. ‘So Lord Wright was saying that you look not at the particular . .
Cited – Howell and Others, Regina v CACD 28-Feb-2003
The defendants appealed against convictions for conspiracy to pervert the course of justice. They had been police officers.
An application was made for the disclosure of the skeleton arguments read by the court, Judge LJ said: ‘Subject to . .
Cited – Great Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
Cited – United States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .

Cited by:
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .

These lists may be incomplete.
Updated: 17 March 2021; Ref: scu.447494

Colin Thomas Ward v Thomas Arter: CA 18 Nov 1998

The respondent requested the appellant’s notice of appeal to be struck out as vexatious, on the basis that it misrepresented the nature of the judgement.
Held: The interpretation of the document was the only one available to the judge. Notice of Appeal struck out.
Lord Justice Evans, Lord Justice Ward
[1998] EWCA Civ 1784, [1998] EWCA Civ 1784
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 1
England and Wales

Updated: 31 December 2020; Ref: scu.145263

Roger Freeguard Margo Freeguard v William Rogers Ingrid Rogers: CA 3 Apr 1998

Application for notice of appeal be struck out – security for costs and leave to adduce further evidence
[1998] EWCA Civ 634
Bailii
England and Wales
Citing:
See also – Rogers and Rogers v Freeguard and Freeguard CA 19-Oct-1998
The parties had drawn up ands executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
See Also – Freeguardand another v Rogers and another CA 31-Mar-1999
After protracted, complicated and bitter litigation, ‘To put the matter quite briefly, Mr and Mrs Rogers’s solicitors appear to be taking advantage rightly or wrongly – and if they have a legal right to do so, of course they have a right to do so – . .

Cited by:
See also – Rogers and Rogers v Freeguard and Freeguard CA 19-Oct-1998
The parties had drawn up ands executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
See Also – Freeguard v Rogers CA 26-Jan-1999
Judgment had been obtained. An order was in preparation for specific performance of an option over land. The parties were unable to agree the form of the order, and it was relisted.
Held: The Freeguards’ objections to the proposed form had no . .
See Also – Freeguardand another v Rogers and another CA 31-Mar-1999
After protracted, complicated and bitter litigation, ‘To put the matter quite briefly, Mr and Mrs Rogers’s solicitors appear to be taking advantage rightly or wrongly – and if they have a legal right to do so, of course they have a right to do so – . .

These lists may be incomplete.
Updated: 31 December 2020; Ref: scu.144112

Edith Alice Billington (By Jack Johnson Billington Her Next Friend) Thomas Joseph Billington Edith Annie Warburton v Joan Blackshaw: CA 16 Dec 1997

The defendant sought leave to add the legal professionals acting for the estate of the deceased as defendants so that she could allege conspiracy.
Held: This was the twelfth or so time the court had been asked to consider this or a similar request. Each time it had been rejected as an abuse. Leave to appeal refused.
[1997] EWCA Civ 3004
Bailii

Updated: 30 December 2020; Ref: scu.143403

Dian AO v Davis, Frankel and Mead: 2005

Application was made for the disclosure of documents from an earlier court case involving the defendants.
Held: The application as made was disallowed. The right thing to do was to identify the documents it sought with reasonable precision and then the court would grant or withhold permission in relation to specified documents. The degree of specification required could be satisfied by specifying a class of documents where there would not be difficulty on the facts in holding whether a document did, or did not, come within the relevant class.
Moore-Bick J
[2005] 1 WLR 2951
Cited by:

  • Cited – Pressdram Ltd v Whyte ChD 30-May-2012
    The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
    Held: The applicant had provided appropriate . .
    [2012] EWHC 1885 (Ch)

These lists may be incomplete.
Updated: 07 December 2020; Ref: scu.472481

Waghorn v Wimpey (George) and Co: 1969

The plaintiff pleaded that he slipped on a bank, but the evidence was that he slipped on a path.
Held: The variation in the case presented from that pleaded was fatal to the case. The court considered such variations: ‘In the present case Mr Archer contends that the true version of the facts is just a variation, modification or development of what is averred, and is not something new, separate and distinct. The only similarities, however, between the plaintiff’s allegations in his pleadings, the way his case was presented, and what in fact took place were these: first of all, the plaintiff slipped; secondly, he slipped at his place of work; and thirdly, he slipped somewhere near a caravan, when it is alleged that he did slip somewhere near a caravan. But the whole burden of the claim put forward by the plaintiff, and the whole burden of the defence to that claim prepared by the defendants and put forward on their behalf by Mr Machin, has been the safety or otherwise of the bank, and not the safety or otherwise of the path at the right-hand side of the caravan, where it runs alongside the dip. In my judgment, this is not a case which is just a variation, modification or development of what is averred. It is a case which is new, separate and distinct, and not merely a technicality. Let me hasten to add that if matters emerge, particularly matters of technicality which, perhaps, could not be foreseen by those responsible for pleading cases, and those things emerge during a case, then it would be quite wrong to dismiss a plaintiff’s claim because his pleadings have not measured up to the technical facts which have emerged. One often listens sympathetically to applications to amend in those circumstances. Here, however, there is nothing technical at all. A man is said to have slipped. There is nothing technical about that. One must test the plaintiff’s submissions in this way: if these allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendant’s preparation of the case, and conduct of the trial, have been any different? The answer to that is undoubtedly ‘Yes.’ Evidence would have been sought as to the safety of the pathway alongside the caravan; as to the frequency with which it was used; as to the position of the valve under the caravan. I say that because there was a dispute as to its precise position. Mr Younger, the charge-hand, said it was on the left-hand side of the caravan. Mr Frost said it was on the right-hand side. If the plaintiff’s case had been pleaded to the effect that it was whilst he was on his way to that valve that he had slipped, then the preparation of the case would have been entirely different and its presentation would have been different. There was no application here for leave to amend. Indeed, Mr Archer may have been very wise not to make any such application, but the upshot of this matter is that this was clearly so radical a departure from the case as pleaded as to disentitle the plaintiff to succeed.’
References: [1969] 1 WLR 1764
Judges: Geoffrey Lane J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – McNamara v North Tyneside Metropolitan Borough Council CA 21-Feb-1997
    The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
    Held: The variation was sufficiently serious to justify the refusal of relief. In fact . .
    (, [1997] EWCA Civ 1072)
  • Cited – Newman v Whitbread Plc CA 26-Feb-2001
    The claimant sought damages after falling down stairs at work. She said that the stairway did not comply with the British Standards in breach of the Regulations. The employer responded that the non-compliance was merely techical, and could not have . .
    (, [2001] EWCA Civ 326)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194070

Loose v Williamson: 1978

References: [1978] 3 All ER 89, [1978] 1 WLR 639, (1978) 122 SJ 212
Jurisdiction: England and Wales
This case cites:

  • Followed – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
    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 . .
    (, [1974] AC 133, [1973] 3 WLR 164, [1973] 2 All ER 943, , [1973] UKHL 6, [1974] RPC 101, [1973] FSR 365)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193358

Evans v Bartram: HL 1937

When a defendant seeks to set aside a regular judgment which had been obtained by default, the test for setting it aside is: ‘In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set it aside should be exercised it his favour. The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the Court will not prima facie desire to let a judgment pass on which there had been no proper adjudication.’ and ‘a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success’
References: [1937] AC 473
Judges: Lord Wright
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Crystal Eye Management (Pty) Limited v Entertainment Guarantees Limited and Victor William Broad CA 15-Jan-1997
    The plaintiffs underwrote a film. The excesses for which they were liable were insured. The plaintiffs came to claim under the insurance, and Lloyds sought to intervene. The plaintiffs obtained judgement against the defendants by default. It later . .
    (, [1997] EWCA Civ 773)
  • Cited – In re Telewest Communications Plc ChD 26-Apr-2004
    A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
    Held: The provision in the scheme did purport to alter the claimant’s rights. . .
    (, [2004] EWHC 924 (Ch), Times 27-May-04)
  • Cited – Piglowska v Piglowski HL 24-Jun-1999
    When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
    (Times 25-Jun-99, Gazette 07-Jul-99, Gazette 20-Oct-99, , , [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FCR 481, [1999] 2 FLR 763, [1999] Fam Law 617)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193406

South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV: HL 1987

There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to grant an injunction at all, and stated certain basic principles governing the grant of an injunction. The first was that the power to grant an injunction was statutory (s. 37 of the 1981 Act). The third related to injunctions to restore proceedings in a foreign court, with which we are not concerned. The second was this: ‘The second basic principle is that, although the terms of section 37 (1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. The nature of the limitations to which the power is subject has been considered in a number of recent cases in your Lordships’ House ‘
Lord Brandon of Oakbrook: ‘. . . The effect of these authorities, so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable.’ The House would not define unconscionable conduct save that it included conduct which is oppressive or vexatious or which interferes with the due process of the court.’
Lord Goff of Chieveley: ‘I am reluctant to accept the proposition that the power of the court to grant injunctions is restricted to certain exclusive categories. That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available.’
References: [1987] AC 24, [1986] 3 WLR 398, [1986] 3 A11 ER 487, [1986] 2 Lloyds Rep 317
Judges: Lord Brandon of Oakbrook, Lord Goff of Chieveley, Lord Mackay of Clashfern
Statutes: Supreme Court Act 1981 37
Jurisdiction: England and Wales
This case cites:

  • Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
    An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
    ([1979] AC 210, [1979] 3 WLR 818, [1979] 3 All ER 803)
  • Cited – Castanho v Brown and Root (UK) Ltd HL 1981
    A claim was made for an anti-suit injunction.
    Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The . .
    ([1981] AC 557)
  • Cited – British Airways Board v Laker Airways Limited HL 1985
    The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
    Held: The action in the US were unlawful . .
    ([1985] AC 58, , [1984] UKHL 7, [1984] 3 WLR 413, [1984] 3 All ER 39)

This case is cited by:

  • Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
    Land had been registered in part as a common. The council appealed.
    Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
    ([2004] EWHC 12 (Ch), , Times 30-Jan-04, [2004] 2 WLR 1291, [2004] Ch 253)
  • Cited – Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Jan-2004
    The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed . .
    (, [2004] EWCA Civ 7)
  • Cited – Worcestershire County Council v Tongue, Tongue, and Tongue CA 17-Feb-2004
    The defendants had been convicted of animal welfare offences, and banned from keeping animals. The claimant sought to enter the premises to remove animals, but were denied entry.
    Held: The court had no power to make an order to allow access . .
    (, [2004] EWCA Civ 140, Gazette 18-Mar-04, [2004] 2 Ch 36)
  • Cited – Fourie v Le Roux and others HL 24-Jan-2007
    The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
    (, [2007] UKHL 1, Times 25-Jan-07, [2007] 1 WLR 320, [2007] 1 All ER 1087, [2007] Bus LR 925)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192161

Islip Pedigree Breeding Centre and Others v Abercromby: HL 1959

The House of Lords should only review concurrent findings of fact in both Outer and Inner House of the Court of Session which depended upon an assessment of credibility by the trial judge if it can be clearly demonstrated that his findings were erroneous.
References: 1959 SLT 161
Judges: Lord Reid
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Dingley v Chief Constable of Strathclyde Police HL 11-May-2000
    The officer had been injured in an accident in a police van. He developed multiple sclerosis only a short time afterwards. The respondent denied that the accident caused the MS.
    Held: There is no proof of what causes MS, but it was common . .
    (, , [2000] UKHL 14, 2000 SC (HL) 77)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191169

Vann v Awford: CA 18 Apr 1986

The Court set aside the judgment on the application of the defendant, despite the fact that that he had, in his own account of the matter, lied on affidavit. Weighing the defence on the merits against possible prejudice to the plaintiffs, the Court applied the principle that it would not wish to let a judgment pass on which there had been no proper adjudication.
References: Unreported, 18 April 1986
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193404

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.
References: [1939] 2 All ER 613, [1939] 2 KB 395
This case is cited by:

  • 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 . .
    ([1981] AC 1096, [1981] 1 All ER 452, [1980] 3 WLR 774)
  • Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
    cplc_pChD2006
    The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
    (, [2006] EWHC 1226 (Ch), Times 08-Jun-06, [2007] 3 WLR 437)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193367