Category: Litigation Practice

Benham Limited v Kythira Investments Ltd and Another: CA 15 Dec 2003

The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a fraud by an employee of the claimants who had now left. The claimants had been unable to call his evidence to support their claim.
Held: ‘Rarely, if ever, should a judge trying a civil action without a jury entertain a submission of no case to answer. That clearly was this court’s conclusion in Alexander -v- Rayson and I see no reason to take a different view today, the CPR notwithstanding. Almost without exception the dangers and difficulties involved will outweigh any supposed advantages. ‘
Scott Baker LJ: ‘It seems to me that the wise words of Romer LJ in Alexander v Rayson in 1936 still hold good today. Only in the most exceptional circumstances should a judge entertain a submission to dismiss an action at the close of the claimant’s evidence without putting the defendant to his election. This was not such a case and it is difficult to envisage many situations when such a course would be appropriate.’

Judges:

Lord Justice Simon Brown Mr Justice Keene Lord Justice Scott Baker

Citations:

[2003] EWCA Civ 1794

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Boyce v Wyatt Engineering and Others CA 1-May-2001
The discretion of a judge to deal with a case at the close of the claimant’s case, and without putting the defendants to their respective election was only to be exercised with the greatest caution. There was a risk that, if the claimant appealed . .
Cited – Bentley v Jones Harris and Co CA 1-May-2001
The judge below acceded to a submission of no case to answer without putting the defendant to his election.
Held: ‘At the time of this trial it was, it seems, common ground between counsel for both parties and the judge that under the CPR . .
Cited – Lloyd v John Lewis Partnership CA 1-Jul-2001
The judge allowed the defendant’s submission of no case to answer without putting them to their election and again the claimant’s appeal succeeded. The trial judge had been persuaded that the rule in Alexander -v- Rayson had been altered by the . .
Cited – Miller (T/A Waterloo Plant) v Cawley CA 30-Jul-2002
At the end of the claimant’s case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed.
Held: It is not . .
Cited – Wisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Affirmed – Alexander v Rayson CA 1936
The action was for arrears of rent. The evidence at trial was that the plaintiff granted a lease to the defendant at a rent of pounds 1200 and contracted that certain services in connection with the flat would be performed. The plaintiff sent the . .

Cited by:

Cited – Neina Graham v Chorley Borough Council CA 21-Feb-2006
The defendant had submitted after the close of the claimant’s case that it had no case to answer. The judge did not put the defendant to its election as to whether to call evidence, but instead decided to accede to the submission. The claimant now . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Agency

Updated: 14 November 2022; Ref: scu.188848

Theaker And Another v Going Places Travel Limited: CA 31 Mar 1998

The appellants had booked a holiday, relying upon the brochure produced by the respondents. On the date of the hearing, the plaintiffs arrived early. They claimed to have told the representative of the defendant that they would leave but return before the expected hearing time. They came back early, but the case had come on, and their case had been dismissed. The defendant gave a differing story.
Held: The court had a discretion before ordering re-instatement to consider the merits of the claim. Here, the misrepresentation alleged was not sustainable, and in view also of the small amount, leave to re-instate the case was denied.

Citations:

[1998] EWCA Civ 573

Statutes:

Package Travel Package Holidays and Package Tours Regulations 1992 (1992 No 3288)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.144051

Khazanchi and Another v Faircharm Investments Ltd and others: CA 17 Mar 1998

‘ question . . as to the powers of a bailiff distraining for rent or a sheriff executing a writ of fieri facias forcibly to re-enter the premises in which the relevant goods are kept for the purpose of removing them. It is not in dispute that entry for the purpose of effecting the initial seizure may only be made with the consent of the occupant or other person in possession of the premises. The question is whether in any and, if so, what circumstances the bailiff or the sheriff in walking possession of the goods is entitled forcibly and without the consent of the occupant or other person in possession of the premises to re-enter in order to remove the goods for the purposes of sale.’

Judges:

Morritt LJ

Citations:

[1998] 1 WLR 1603, [1998] EWCA Civ 471, [1998] 2 All ER 901

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.143949

National Bank of Sharjah v Dellborg and Others: CA 22 Feb 1993

On an ex parte application for a Mareva injunction, the party applying should file an affidavit making proper and fair disclosure of the fact supporting the allegation. Such an affidavit should normally be accompanied by enough documents to make the issues clear, but need not be accompanied by substantial numbers of documents.

Judges:

Saville LJ

Citations:

Ind Summary 22-Feb-1993

Jurisdiction:

England and Wales

Cited by:

See Also – National Bank of Sharjah v Dellborg and Others CA 9-Jul-1997
The parties disputed the meaning of a Tomlin order to which they had agreed.
Held: Saville LJ said ‘if the circumstances surrounding the making of the agreement showed to a reasonable man that to read paragraph 8 as covering only the amounts . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.84175

TMO Renewables Ltd v Reeves and Another: ChD 8 Apr 2020

‘The issue in this appeal is whether one of the liquidators of the appellant/claimant company (TMO) has waived litigation privilege in respect of a report which it obtained in May 2016 from Ernst and Young LLP [EY]. Deputy Master Nurse held that it had and so ordered production of the report. TMO appeals that finding.’

Citations:

[2020] EWHC 789 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.649960

Vardy Properties and Another v Revenue and Customs: FTTTx 1 Feb 2013

FTTTx Procedure – costs – late application for costs order – no representations received from Appellant – time limit extended – costs schedule attached to application – no representations on costs schedule received – summary assessment issued in the amount claimed – indication given of willingness to make an ‘in principle’ costs order in appropriate circumstances if receiving party applies for order waiving requirement to provide a schedule of costs with its application for an order

Citations:

[2013] UKFTT 96 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.472383

Heifer International Ltd v Christiansen and Another: TCC 9 Apr 2013

The court was asked whether a charging order placed on the Claimant’s property in Surrey should be discharged. The real issue is whether or not the debt, which related to a costs order made against the Claimant, has been or is to be considered as having been discharged.

Judges:

Akenhead J

Citations:

[2013] EWHC 721 (TCC)

Links:

Bailii

Citing:

See Also – Heifer International Inc v Christiansen TCC 18-Dec-2007
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Construction

Updated: 14 November 2022; Ref: scu.472253

Re GB (Children): CA 7 Feb 2013

Appeal against determination in care proceedings. Part way through the mother had sought an adjournment so as to instruct different lawyers, but this had been refused.

Judges:

Rix, Lloyd, McFarlane LJJ

Citations:

[2013] EWCA Civ 164

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re B and T (care proceedings: legal representation) CA 2001
Thorpe LJ said: ‘The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 14 November 2022; Ref: scu.472107

G v Norwich City Council and Others: QBD 22 Mar 2013

The claimant renewed her application to reverse the striking out of her 29 applications and against a general civil restraint order made against her.
Held: None of the various allegations against several defendants had any coherence or could properly found a claim. Similarly the civil restraint order was amply justified and should remain in place.

Judges:

Sir Raymond Jack

Citations:

[2013] EWHC 623 (QB)

Links:

Bailii

Litigation Practice

Updated: 14 November 2022; Ref: scu.472086

Glatt and Others v Sinclair: CA 26 Mar 2013

In exceptional cases the Court of Appeal will allow a party to advance fresh grounds not advanced before the court below

Judges:

Maurice Kay, Moses, Davis LJJ

Citations:

[2013] EWCA Civ 241, [2013] 1 WLR 3602, [2013] CP Rep 30, [2013] BPIR 468, [2013] WLR(D) 134

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Deer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.472064

Ismail v Secretary of State for Home Department: Admn 26 Mar 2013

The court was asked as to the extent of the Secretary of State’s discretion and obligation to consider a person’s Article 6 rights when requested personally to serve a judgment of an overseas court pursuant to a request for mutual legal assistance from the government of the country of that overseas court. The Claimant said that by serving the judgment the Secretary of State would be directly assisting in the enforcement of a foreign conviction obtained in circumstances which included a flagrant denial of justice. The Secretary of State suggested it would be no more that an administrative role in accordance with her responsibility to assist another state. She would be merely giving the Claimant a copy of the judgment, that her discretion in such circumstances was limited, and that responsibilities under Article 6 were not engaged.
Held: In exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served.
The consequences which the court considered would ensue for the respondent by service of the judgment were summarised: ‘Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment.
Remaining in the United Kingdom would have significant consequences for the claimant once the judgment is served. Although there is presently no extradition arrangement between the United Kingdom and Egypt, on any request for extradition, the claimant could not dispute the facts. Egypt would then be seeking the extradition of a man guilty of manslaughter. Of course, the claimant would have the protection rights under Part 2 of the Extradition Act 2003. Further, a final judgment in the United Kingdom might well lead to an Interpol ‘red notice’. He could not then leave the United Kingdom for fear of being arrested.’
Goldring LJ referred to four factors which, he said, constituted ‘sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith’. Those factors were: (i) the background of public pressure after the respondent’s acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation; (iii) in the course of the appeal hearing, the respondent’s legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts.
There was sufficient evidence for the Secretary of State to consider whether article 6 was engaged: ‘For article 6 to be engaged the disregard of a person’s article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self-incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Brown’s speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present.’

Judges:

Goldring LJ, Wyn Williams J

Citations:

[2013] EWHC 663 (Admin), [2013] WLR(D) 133

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 6, Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

At Admn – Ismail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 14 November 2022; Ref: scu.472040

NNN v Ryan and Others: QBD 20 Mar 2013

The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed.

Judges:

Sharp J

Citations:

[2013] EWHC 637 (QB)

Links:

Bailii

Citing:

Cited – DFT v TFD QBD 27-Sep-2010
The court heard an application for an injunction to restrain publication of material relating to the claimant’s private and sexual life.
Held: An injunction restraining publication and identification, but not an order restraining publication . .
Cited – AMM v HXW QBD 7-Oct-2010
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – Practice Guidance: Interim Non-Disclosure Orders 20-May-2011
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.471925

Murphy and Others v The Commmissioner of Police for The Metropolis: QBD 25 Sep 2012

The claimants sought disclosure of documents said by the defendant to be protected by legal professional privilege, and in particular the complaints histories of the officers intended to be called by the defendant at the forthcoming trial.

Judges:

Lindblom J

Citations:

[2012] EWHC 4123 (QB)

Links:

Bailii

Litigation Practice

Updated: 14 November 2022; Ref: scu.471777

AKJ and Others v Commissioner of Police for The Metroplis and Others: QBD 17 Jan 2013

The claimants sought damages for the actions of undercover police officers engaging in sexual activity as part of the investigation. The court now considered the role of the Investigatory Powers Tribunal in dealing with such claims.
Held: Such activity fell within ‘personal or other relationship with a person’ for the purposes of section 26(8) of the 2000 Act and therefore under section 65, the Tribunal had exclusive jurisdiction to hear a claim brought against the police under the Human Rights Act 1998.

Judges:

Tugendhat J

Citations:

[2013] EWHC 32 (QB), [2013] WLR(D) 49, [2013] 1 WLR 2734

Links:

Bailii, Justiciary, WLRD

Statutes:

Regulation of Investigatory Powers Act 2000, Human Rights Act 1998

Jurisdiction:

England and Wales

Litigation Practice, Police, Human Rights

Updated: 14 November 2022; Ref: scu.470146

Mann v Carnell: 21 Dec 1999

Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – Separation of powers – Representative government – Nature of relationship between the ACT Legislative Assembly and the ACT Executive.
Words and phrases – ‘client legal privilege’.
‘What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. . Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect . . considerations of fairness may be relevant to a determination of whether there is such inconsistency.’

Judges:

Gleeson CJ, Gaudron, Gummow and Callinan JJJ

Citations:

[1999] HCA 66, [1999] 201 CLR 1, [1999] 168 ALR 86, [1999] 74 ALJR 378

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Professions, Litigation Practice

Updated: 14 November 2022; Ref: scu.344013

Dowles Manor Properties Limited v Bank of Namibia and Kalweendo: CA 9 Mar 1998

The plaintiff sought leave to appeal against an order striking out its claim, having failed to comply with unless orders as to the filing of details of its case. The company’s officers were not resident in England. Their solicitors had withdrawn from the action. The defendants issued an application to strike out the claim, and gave a copy to the plaintiff’s former solicitors. The claimant now said they had been ignorant of the application.
Held: However it arose, there was now a case to be tried, and the delay fell to the bottom end of the Hytec scale. Leave to appeal was given.

Judges:

Lord Justice Evans, Lord Justice Thorpe

Citations:

[1998] EWCA Civ 422

Jurisdiction:

England and Wales

Citing:

Cited – Hytec Information Systems Limited v Council of City of Coventry CA 4-Dec-1996
The Court directed that unless particulars were served by a specified date the defendant’s claim should be struck out. The defendant served some particulars but it was decided that the defendant had deliberately flouted the unless order and its . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.143900

Sayle v Cooksey: 1969

The court questioned whether the availability of an alternate remedy for a party against his solicitors should affect the decision to strike out a plaintiff’s claim.

Judges:

Sachs LJ

Citations:

[1969] 2 Lloyd’s Rep 618

Jurisdiction:

England and Wales

Cited by:

Cited – Worldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.196073

Sundt Wrigley and Co Limited v Wrigley and others: CA 19 Feb 1998

Citations:

[1998] EWCA Civ 302

Jurisdiction:

England and Wales

Citing:

See Also – Sundt Wrigley and Co Limited; Euro Canadian International Fund Limited v Wrigley; Bawt Limited; Atlantic Investments Limited v Sundt and Beaumont CA 31-Jul-1997
. .
See Also – Sundt Wrigley Co Ltd v Wrigley CA 23-Jun-1993
In an asset freezing order, where the defendant seeks leave to discharge liabilities, the nature of the plaintiff’s interest makes a difference. The court distinguished between cases where the plaintiff has a proprietary claim in the frozen assets . .

Cited by:

See Also – Sundt Wrigley and Co Limited v Wrigley and others CA 19-Feb-1998
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.143780

Brophy and Another v Dunphys Chartered Surveyors: CA 2 Mar 1998

Before striking out pleadings as showing no proper cause of action, the court should allow a suggested amendment, which presented a better and an arguable case.

Citations:

Times 11-Mar-1998, [1998] EWCA Civ 372

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.143850

H B Property Developments Ltd v Secretary of State for Environment: CA 17 Feb 1998

Aldouse LJ discussed the doctrine of election: ‘The doctrine of election is one where a party is held to an informed decision. It is not to be confused with estoppel or acquiescence where the court looks at the actions of both parties and ascertains whether it would be unconscionable for one party to take an action . . . It is a practical doctrine which requires a person who takes a course of action with full knowledge of his right to stand by his decision. He cannot blow hot and cold. ‘

Judges:

Aldous LJ

Citations:

[1998] EWCA Civ 260, (1998) 78 P and CR 108

Jurisdiction:

England and Wales

Cited by:

Cited – John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.143738

Platts v Trustees Savings Bank Plc: CA 13 Feb 1998

A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory demand owed to the Bank for a sum greatly in excess of the statutory minimum which was not disputed on substantial grounds, being the petition debt less the net value of the cross claim put at its highest after equitable set-off of the Bank’s debt not the subject of the statutory demand. That sum was payable at the date of the petition and had not been paid or secured or compounded for, and the Judge was entitled to make a bankruptcy order on it.

Judges:

Lord Justice Peter Gibson, Lord Justice Otton, Sir John Balcombe

Citations:

Times 04-Mar-1998, Gazette 25-Mar-1998, [1998] EWCA Civ 241

Statutes:

Insolvency Act l986 264(l)(a) 267(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – TSB Bank plc v Platts (No 2 ) 1997
. .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – General Credits (Finance) Pty Ltd v Stoyakovich 1975
A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. . .
Cited – Standard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
Cited – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Re a Debtor (Nos 49 and 50 of 1992) 1995
The evidence disclosed a genuine triable issue as to whether there was a current liability to pay a sum equalling or exceeding andpound;750 and so a statutory demand had rightly been set aside. The judge had found that the debtor had a substantial . .
Cited – Samuel Keller (Holdings) Ltd v Martins Bank ChD 1970
On an interpleader summons by a bank, the question asked was whether the proceeds of sale held by the bank of properties mortgaged should be paid to the mortgagee or paid into court because the mortgagor had a cross-claim against the mortgagee.
Not followed – Re the Brighton Club QBD 1865
A petitioner served a statutory demand for more than andpound;4,000 on the company but the company bona fide disputed the amount due.
Held: The petition would be dismissed even though more than andpound;50 (the statutory minimum) was due from . .
Cited – Re Humberstone Jersey Ltd CA 24-Jan-1977
A manufacturing company was supplied with machines on terms that they were to be installed within 30 days. The installation was not completed for another 6 months and the company claimed damages for breach of contract. The supplier served a . .
Doubted – Re a Company (No 003729 of 1982 ) ChD 1984
A creditor had claimed that the company owed it some andpound;12,000 for work done by the creditor for the company. The company refused to pay that sum but offered to pay some andpound;2,000. Two years later the creditor served a statutory demand . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 14 November 2022; Ref: scu.143719

Kapur v J W Francis and Co and Hinkson: CA 9 Feb 1998

When a judge ordered separate trials for liability and as to quantum, it was wrong to order discovery on elements which might not come to trial.

Citations:

Times 04-Mar-1998, [1998] EWCA Civ 187

Jurisdiction:

England and Wales

Cited by:

See also – Kapur v J W Francis and Co CA 18-May-1999
Notwithstanding a finding by a High Court Judge that K ‘had shaded the truth’, and ‘lacked frankness in his evidence’, the Court set aside a credibility finding on the basis that not only was there a lack of reasoning as to why the Judge preferred . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 November 2022; Ref: scu.143665

Regina v Secretary of State for the Home Department, Ex Parte Salem: HL 3 Mar 1999

The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are particular. There must be a good reason in the public interest for hearing such a case, and the House cited, as an example, a case: ‘where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists or are anticipated so that the issue will most likely need to be resolved in the near future.’
Lord Slynn of Hadleigh said: ‘My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.’

Judges:

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Jauncey of Tullichettle, Lord Steyn and Lord Clyde

Citations:

Gazette 03-Mar-1999, Times 12-Feb-1999, [1999] UKHL 8, [1999] 1 AC 450, [1999] 2 All ER 42, [1999] 2 WLR 483

Links:

House of Lords, Bailii, WLR

Jurisdiction:

England and Wales

Citing:

On appeal from – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Sun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .

Cited by:

Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina, (Ultraframe (UK) Ltd) v Central Arbitration Committee CA 22-Apr-2005
Two trade unions had sought recognition. Ballots had been held which almost secured recognition but fell a handful of votes short. The Unions criticised the way the ballots had been conducted, saying that a number of employees had not received . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
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 . .
Applied – Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another CA 1-Dec-2020
Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Immigration, Benefits

Updated: 14 November 2022; Ref: scu.85536

Gilham v Browning and Another: CA 3 Feb 1998

The Court had been right to disallow a discontinuance where there appeared to be an abuse of process. The common law right to non-suit has disappeared.

Judges:

Lord Woolf MR, Potter, May LJJ

Citations:

Times 26-Feb-1998, [1998] EWCA Civ 139, [1998] 1 WLR 682, [1998] 2 All ER 68

Links:

Bailii

Statutes:

County Court Rules 1981 Order 18

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.80826

Gorman v British Airways Plc: CA 4 Feb 1998

The claimant said that whilst he was a passenger on a flight, he ingested broken glass in a drink. The trial of his case took place in his absence and he successfully set aside judgment against him in default when he failed to appear. The defendant now sought to re-instate the default judgment.
Held: The judge did not have a sufficient evidential basis for concluding that the claimant had voluntarily not attended. There had been evidence before the court to suggest a medical condition justifying his absence. The case was remitted for retrial before a different judge.

Judges:

Lord Bingham of Cornhill, Judge LJ, Robert Walker LJ

Citations:

[1998] EWCA Civ 146

Jurisdiction:

England and Wales

Citing:

Cited – Shocked and Another v Goldschmidt and Another CA 4-Nov-1994
A party’s failure to appear at the trial implied that he had made certain choices which he was not to be allowed to go back on when seeking to set aside any judgment made. . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 14 November 2022; Ref: scu.143624

Hammond v West Lancashire Health Authority: CA 13 Feb 1998

A Health Authority which destroyed x-ray evidence after three years, even though it knew of the negligence claim against it, and to which the x-rays might relate, had great difficulty in pleading prejudice from delay in prosecution of action by the Plaintiff.

Citations:

Gazette 08-Apr-1998, Times 05-Mar-1998, [1998] EWCA Civ 238

Jurisdiction:

England and Wales

Litigation Practice, Health

Updated: 14 November 2022; Ref: scu.81210

Cheltenham and Gloucester Plc v Booker and Another: CA 14 Nov 1996

Whether the court has jurisdiction, and if so in what circumstances should it exercise such jurisdiction, to give conduct of a sale to a mortgagee while at the same time postponing the execution of a warrant for possession until completion of the sale.

Citations:

[1996] EWCA Civ 957, (1997) 29 HLR 634, (1997) 73 P and CR 412, [1997] 1 FLR 311, [1997] Fam Law 327, [1997] 19 EG 155, [1997] 1 EGLR 142

Links:

Bailii

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 14 November 2022; Ref: scu.662193

Zenith Logistics Services (UK) Ltd and Others v Coury: QBD 3 Apr 2020

Whether it is compatible with the requirements of open justice for the Court to make an order staying proceedings on terms contained in a confidential agreement extraneous to the order, or in a confidential schedule to the Order.

Judges:

Warby J

Citations:

[2020] EWHC 774 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.649928

Attwood and Others v Maidment: CA 26 Feb 2013

The claimant had brought proceedings successfully claiming unfair prejudice. The defendant now appealed against a direction given in respect of the valuation of the shares at issue.

Judges:

Arden, Elias, Black LJJ

Citations:

[2013] EWCA Civ 119

Links:

Bailii

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 November 2022; Ref: scu.471199

Research In Motion UK Ltd v Visto Corporation (3025): PatC 5 Dec 2008

Whether to split the trial

Citations:

[2008] EWHC 3025 (Pat)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Research In Motion UK Ltd v Visto Corporation (3026) PatC 5-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 13 November 2022; Ref: scu.278789

Attorney General v Perotti: Admn 10 May 2006

The respondent had been subject first to a Grepe v Loam order and then to an extended civil restraint order. The court had still faced many hopeless applications. An order was now sought that any future application for permission to appeal be heard by a nominated judge, and any oter application should be heard first on paper by a judge of the court of appeal.
Held: ‘The orders have not stopped him from attempting to pursue unreasonable appeals: they have merely stopped him from reduplicating his attempts to do so. They have not stopped him from multiplying unnecessary and unreasonable litigation in circumstances where he is the defendant, as the most recent scheduled cases illustrate. And they have not stopped him from turning his obsession towards the sanctions of the criminal law, as his letters to the Commissioners demonstrate. These events show that, if he had the opportunity, he would reduplicate his efforts once he was allowed to do so. ‘

Judges:

Rix LJ, Tugendhat J

Citations:

[2006] EWHC 1002 (Admin)

Links:

Bailii

Statutes:

Supreme Court Act 1981 42

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General v Jones CA 1990
A section 42 order embraced applications to or in the Court of Appeal as well as below. A person against whom a vexatious litigant order was sought could not seek to argue anew the findings which had already been made against him by the courts in . .
Cited – Attorney-General v Barker CA 16-Feb-2000
An order that someone be denied access to the courts save with consent of a judge was a challenge to that individual’s constitutional rights, and should only be made if the statutory pre-conditions are fulfilled. It had to be shown that the litigant . .
Cited – Attorney-General v Covey; Attorney-General v Matthews CA 19-Feb-2001
Appeals were made against orders under s42 of the 1981 Act restraining the appellants from commencing proceedings without consent of the court.
Held: The non-disclosure of a bench memorandum was the usual practice internationally, and not a . .
Cited – Attorney-General v Covey QBD 6-Oct-2000
In an application for a vexatious litigant order, the court asked whether the repetitious proceedings must be against the same defendant. Lord Justice Rose: ‘The question is whether it is a necessary prerequisite for the making of an order under . .
Cited – Bhamjee v Forsdick and Others (No 2) CA 25-Jul-2003
The Court set out the range of remedies available to protect court processes from abuse by litigants who persist in making applications totally devoid of merit. The courts are facing very serious contemporary problems created by the activities of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.241605

Thane Investments Ltd and others v Tomlinson and others: CA 29 Jul 2003

Peter Gibson LJ emphasised that in freezing order applications, ‘it is important that there should be solid evidence adduced to the Court of the likelihood of dissipation.’ He went on to say that it was not enough merely to point to some dishonesty on the part of the respondent to justify the making of a freezing order: ‘I have to say that, if that has become the practice, then the practice should be reconsidered. It is appropriate in each case for the Court to scrutinise with care whether what is alleged to have been the dishonesty of the person against whom the order is sought in itself really justifies the inference that that person has assets which he is likely to dissipate unless restricted.’

Judges:

Peter Gibson LJ

Citations:

[2003] EWCA Civ 1272

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Thane Investments Ltd and Another v Tomlinson ChD 6-Dec-2002
The claimants had obtained an ex parte freezing order. The respondent complained that they had failed to provide full notes of the hearing as required.
Held: It was vital that those obtaining ex parte relief should comply with the . .

Cited by:

Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.186544

Miles v Mcgregor: CA 23 Jan 1998

Increase in findings of inordinate delay accompanied increased reluctance to strike out in absence of established prejudice to other party: ‘The abuse of process route is for cases … when the conduct amounts to an affront to the court and its Rules’

Judges:

Auld LJ

Citations:

Gazette 26-Feb-1998, [1998] EWCA Civ 58

Jurisdiction:

England and Wales

Cited by:

Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.143536

Smith v Chief Constable of Kent: CA 26 Jan 1998

The plaintiffs had sought to claim against the defendants for tort of malicious prosecution The trial had been vacated once on the defendants paying costs, and they made a second application, saying that more days were needed. That application was granted, and the claimants now sought leave to appeal adjournment of the trial.
Held: The application had no prosepct of success and failed. Though applications to adjourn arising from a party’s delay were now to be granted less easily, this was a case which required a full and proper hearing. This was not to give the police a privileged status, but the nature of the claims required a full hearing, which was not available without the adjournment requested.

Judges:

Roch LJ, Wall J

Citations:

[1998] EWCA Civ 63

Jurisdiction:

England and Wales

Citing:

Cited – Beachley Property Ltd v Edgar CA 18-Jul-1996
Witness statements which had not been served in accordance with the rules were not be admitted. Courts are to adopt a far stricter approach to applications for adjournment based on lack of readiness for trial than hitherto: ‘I would like to make it . .
Cited – Joyce v King CA 6-Jul-1987
An appeal was made against a refusal of an adjournment.
Held: Although the question of whether to grant an adjournment is essentially a matter of discretion, only if the decision refusing to grant an adjournment was wholly wrong should the . .
Cited – The Mortgage Corporation Ltd v Sandoes and Others CA 26-Nov-1996
Where the Parties had fallen behind a court timetable, they should agree a new one which would not delay the trial. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Updated: 13 November 2022; Ref: scu.143541

Signet Group Plc v Hammerson UK Properties Plc: CA 9 Dec 1997

An application was made for a new tenancy within the four month period prescribed by section 29(3) of the LTA. The applicants named in error in the application were ‘Signet Group plc’ and not ‘Ernest Jones Ltd’. Hammerson had not been misled and was in no reasonable doubt as to the identity of the person intending to sue. Application was made under RSC Ord 20 r 5(3) for leave to amend the name on the application. The four month period had by now expired.
Held: The amendment of the name of a party relates back to the start of the action even though it would be out of time otherwise if substituting a new party. It was proper to allow the amendment.

Citations:

Gazette 21-Jan-1998, Times 15-Dec-1997, [1997] EWCA Civ 2939

Statutes:

Rules of the Supreme Court Order 20 rule 5(3), Landlord and Tenant Act 1954 29(3)

Jurisdiction:

England and Wales

Citing:

Cited – Mitchell v Harris Engineering Co Ltd CA 1967
The plaintiff was seeking to claim against his employers for personal injuries. There was correspondence with them before action that did not lead to a settlement. When the writ was issued a junior clerk made a mistake and issued it in the very . .

Cited by:

Cited – Parsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.143338

Da Silva and Entwistle v Chief Constable of Greater Manchester Police: CA 11 Dec 1997

The plaintiff had commenced an action for assault against the police, but had then let it sleep. The defendant’s application for it to be struck out failed. When the plaintiff applied to set it down, the defendant realising his error sought again a strike out.
Held: The further delay after the first hearing was not to be excused because of difficulties arising on the first period of delay. The action was struck out.

Citations:

[1997] EWCA Civ 2957

Jurisdiction:

England and Wales

Citing:

Cited – C M Van Stillevoldt BV v E L Carriers Inc CA 1983
Practice on applications for leave to appeal out of time. The court allowed an extension where the applicant’s solicitors were 2 weeks late in setting down the appeal. Griffiths LJ cited with approval the approach taken at first instance by the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.143356

Arbuthnot Latham Bank Limited; Nordbanken London Branch v Trafalgar Holdings Limited; Ashton and Ashton: CA 16 Dec 1997

The issue was the appropriateness of a Court striking an action out where there has been considerable delay if: (i) the cause of action relied upon by the plaintiff in the proceedings would be statute barred if the action were to be struck out, but (ii) the plaintiff has another cause of action upon which he has not so far relied for recovering the money or property the subject matter of the existing action and the cause of action is subject to a longer limitation period which has not expired, and (iii) if the original action is struck out, the probabilities are that fresh proceedings will be commenced which will rely upon the cause of action which is not statute barred.
Held: The importance of abiding by time limits under the new case management regime was re-enforced again by the court.
Lord Woolf MR said: ‘The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389. The position is the same as it is under the first limb of Birkett v James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed.’
He also discussed the abuse of process, saying: ‘Whereas hitherto it may have been arguable that for a party on its own initiative to in effect ‘warehouse’ proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes.’

Judges:

Lord Woolf MR

Citations:

Times 29-Dec-1997, [1998] 1 WLR 1426, [1997] EWCA Civ 2999, [1998] 2 All ER 181, [1998] CLC 615

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – UCB Corporate Services Ltd (formerly UCB Bank plc) v Halifax (SW) Ltd CA 6-Dec-1999
It was proper to strike out a claim for abuse of process where the party had been involved in a wholesale disregard of the Civil Procedure Rules and of court orders. The court has a range of remedies appropriate to the degree of such disregard. . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Approved – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .
Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Cited – Panamax Star Owners and or Bailees of The Cargo of The Ship) v Auk (Owners of The Ship) AdCt 18-Dec-2013
A strike out was sought alleging gross delay and an abuse of process.
Held: The strike out was granted both as to the claim and counter claims.
Hamblen J discussed first the issues surrounding delay: ‘In summary, the authorities provide . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.143398

Harkin v Hellawell (Sued As the Chief Constable of West Yorks Police): CA 4 Dec 1997

The claimant had been bitten by a police dog and wished to claim damages. She appealed refusal of an order for records of the dog to be disclosed.
Held: The request was phrased impossibly widely and had been properly refused.

Citations:

[1997] EWCA Civ 2915

Statutes:

Animals Act 1971 2

Jurisdiction:

England and Wales

Personal Injury, Litigation Practice, Animals

Updated: 13 November 2022; Ref: scu.143314

Kuwait Airways Corporation v Iraqi Airways Company (Body Corporate) Republic of Iraq: CA 4 Dec 1997

Leave to appeal against interim procedural order.

Citations:

[1997] EWCA Civ 2905

Jurisdiction:

England and Wales

Citing:

Appeal from – Kuwait Airways Corporation v Iraqi Airways Company (No. 2) ComC 27-Nov-1997
First defendant’s solicitors had not received sufficient funds to cover the costs of trial and had previously obtained the leave of the judge to come off the record. They now applied to resume the trial. The judge ordered that the trial be resumed . .

Cited by:

Appealed to – Kuwait Airways Corporation v Iraqi Airways Company (No. 2) ComC 27-Nov-1997
First defendant’s solicitors had not received sufficient funds to cover the costs of trial and had previously obtained the leave of the judge to come off the record. They now applied to resume the trial. The judge ordered that the trial be resumed . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.143304

Figgett v Davis: CA 30 Jan 1998

An order striking out a defence and requiring fully argued directions to be filed left the action without directions; no automatic directions could apply.

Citations:

Gazette 26-Feb-1998, Times 11-Feb-1998, [1998] EWCA Civ 113, [1998] 1 WLR 1184, [1998] 2 All ER 356, [1998] PIQR P149

Links:

Bailii

Statutes:

County Court Rules 1981 Order 17 Rule 11

Jurisdiction:

England and Wales

Litigation Practice

Updated: 13 November 2022; Ref: scu.80519

Choraria v Sethia: CA 15 Jan 1998

Inordinate and inexcusable delay flouting court rules could itself constitute abuse of process irrespective of the absence of prejudice. A ‘complete, total or wholesale disregard, put it how you will, of the Rules of Court … is capable of amounting to … an abuse’

Judges:

Nourse LJ

Citations:

Times 29-Jan-1998, Gazette 18-Feb-1998, [1998] EWCA Civ 24, [1998] CLC 625

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.79108

Templeton Insurance Ltd v Thomas and Another: CA 5 Feb 2013

The court was asked whether goodwill was to be regarded as an asset in the context of an asset freezig order. A third party company was subject to such and they were said to have broken the order by the purchase at an undervalue of the company business. They now argued that such a sale was not the disposal of an asset within the order.
Held: The appeal failed. The fact that goodwill is an intangible makes it no less an asset than other intangibles, such as choses in action.

Judges:

Rix, Black, Lewison LJJ

Citations:

[2013] EWCA Civ 35

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Darashah v UFAC (UK) Ltd CA 1982
A Mareva order had been obtained. The order explicitly included goodwill as an asset of the company, but the defendant argued still that it was not covered as an asset for the injunction.
Held: The court rejected the assertion.
Lord . .

Cited by:

Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Updated: 13 November 2022; Ref: scu.470803

Akcine Bendrove Bankas Snoras v Antonov and Another: ComC 4 Feb 2013

Application for discharge of world wide asset freezing order.

Judges:

Gloster DBE J

Citations:

[2013] EWHC 131 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.470750

Queen Mary University of London v Osonnaya: CA 15 Nov 2012

The appellant appealed against the striking out of her appeal. She had been employed by the respondents as a result of arrangements made by a third party, but the employment was terminated after the appellant had brought proceedings against her and the third party alleging frauds.
Held: The appeal failed: ‘having looked at the massive volume of papers in this case, that Kenneth Parker J was plainly entitled to take the view that he did that the appeal should be struck out. There had been inordinate and inexcusable delay in its prosecution. Where a default judgment had been obtained so many years before and the appellate processes are clear and available to people, there can be no excuse for the failure of this appellant to have progressed the matter.’

Judges:

Sir John Thomas P QBD, Moses, Black LJJ

Citations:

[2012] EWCA Civ 1858

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Litigation Practice

Updated: 13 November 2022; Ref: scu.470738

Lorenzo v The Chief Constable of The West Midlands: CA 12 Dec 2012

The claimant alleged assault and false imprisonment by officers employed by the defendant. The judge had made case management decisions as to the number of witnesse to be called by the defendant, and had also limited the time for the jury to deliberate.

Judges:

Logmore, Moses, Kitchin LJJ

Citations:

[2012] EWCA Civ 1863

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 13 November 2022; Ref: scu.470741

Denekamp v Denekamp: CA 8 Dec 2005

The claimant sought leave to appeal against an order striking out his claim, a civil restrain order and dismissal of his claim for the defendant’s legal team be debarred from acting, being, he said, in contempt.
Held: Leave was refused: ‘I am in no doubt at all that these defendants are after all these years of fruitless litigation entitled to some peace of mind and some halt to the ceaseless pursuit by Mr Denekamp of his misconceived complaints against them. Far from the judge being wrong he was in my judgment obviously right. The way he floods me with paper confirms the view that the deluge must stop. This is an utterly hopeless application which must be dismissed. ‘

Judges:

Ward LJ

Citations:

[2005] EWCA Civ 1477

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 13 November 2022; Ref: scu.470693

Ambrosiadou v Coward: QBD 25 Jan 2013

Application is for an order that the court approve the terms of an order which is in terms largely agreed between the parties, and by which they have settled the litigation between them. There is included an application for the court’s permission for the making of a statement in open court

Judges:

Tugendhat J

Citations:

[2013] EWHC 58 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 13 November 2022; Ref: scu.470591

Graiseley Properties Ltd and Others v Barclays Bank Plc and Others: ComC 24 Jan 2013

The claimants sought damages alleging that the defendant bank had manipulated the LIBOR bank rate whch was used to set interest rates on its loan. The defendant sought guidance as to the form to be taken by its electronic disclosures, and an order whereby the names of individuals involved in alleged manipulation of LIBOR only be referred to in open court both at the interim stage and at trial using a code.
Held: The order was rejected being an unwarranted derogation from the principles of open justice. There was an obvious and compelling public interest in establishing the true extent to which financial institutions had been engaged in the manipulation of LIBOR.

Judges:

Flaux J

Citations:

[2013] EWHC 67 (Comm)

Links:

Bailii

Citing:

See Also – Graiseley Properties Ltd and Others v Barclays Bank Plc ComC 29-Oct-2012
The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The . .

Cited by:

Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 19-Feb-2015
The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Banking, Litigation Practice

Updated: 13 November 2022; Ref: scu.470560

Broughton v Kop Football (Cayman) Ltd and Others: CA 20 Dec 2012

Application for leave to appeal against case management decisions.
Held: Lewison LJ said that as a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree’.

Judges:

Tomlinson, Lewison, McCombe LJJ

Citations:

[2012] EWCA Civ 1743

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Prince Abdulaziz v Apex Global Management Ltd and Another SC 26-Nov-2014
The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.470122

Secretary of State for Health and Others v Servier Laboratories Ltd and Others: ChD 12 Oct 2012

Application by defendant for stay of proceedings – parallel action in Europe

Judges:

Henderson J

Citations:

[2012] EWHC 2761 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice

Updated: 13 November 2022; Ref: scu.470136

Mannion v Ginty: CA 28 Nov 2012

The court discussed an appeal against a case management decision.
Held: Lewison LJ said: ‘It has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.’

Judges:

Lewison, Mummery, Jackson LJJ

Citations:

[2012] EWCA Civ 1667

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Mitchell MP v News Group Newspapers Ltd CA 27-Nov-2013
(Practice Note) The claimant brought defamation proceedings against the defendant newspaper. His solicitors had failed to file his costs budget as required, and the claimant now appealed against an order under the new Rule 3.9, restricting very . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 November 2022; Ref: scu.470117

Railtrack Plc (In Railway Administration) v Guinness Limited: CA 20 Feb 2003

The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised by central government and subject to the political pressures as were the Claimants themselves’. The Act said ‘if sold in the open market by a willing seller’
Held: Legislation had limited the amount of compensation to be paid where there was any urgency by deeming the seller to be willing. If it is intended to rely on a complex valuation exercise, based on a computer model, a common model should be agreed. There did appear to be a possibility of double counting on some element of the claim, and limited leave was given. The parties should work together to simplify the figures, issues and presentation for the court.

When dealing with appeals from a specialist tribunal, ‘issues of law in this context are not narrowly understood.’ ‘The court can correct ‘all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings’ (R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, 862 per Lord Templeman; see also de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), p 686, para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached ‘upon an incorrect basis of fact’, due to misunderstanding or ignorance (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 321, para 53, per Lord Slynn of Hadley). A failure of reasoning may not in itself establish an error of law, but it may ‘indicate that the tribunal had never properly considered the matter . . and that the proper thought processes have not been gone through’ (Crake v Supplementary Benefits Commission [1982] 1 All ER 492, 508).’

Judges:

Lord Justice Aldous Lord Justice Carnwath Sir Denis Henry

Citations:

Times 03-Mar-2003, [2003] EWCA Civ 188, [2003] RVR 280, [2003] NPC 25, [2003] 9 EG 197, [2003] 1 EGLR 124

Links:

Bailii

Statutes:

Land Compensation Act 1961 5

Jurisdiction:

England and Wales

Citing:

Cited – Wilbraham v Colclough and others 1952
. .
Appeal from – Railtrack Plc and Another v Guinness Ltd LT 11-Feb-2002
ARBITRATION – access rights – development land – value of access rights over railway to allow development – residual valuations – value of rights determined at pounds 5 million . .
Application for leave to appeal – Railtrack Plc (In Railway Administration) v Guinness Ltd CA 17-Oct-2002
Application for leave to appeal against order of lands tribunal. . .

Cited by:

Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 12 November 2022; Ref: scu.179510

Sartipy v Tigris Industries Inc: ChD 18 Dec 2017

Defendant’s application to set aside judgment in default, and for an extended civil restraint order.
Held: Judgment was set aside: ‘these proceedings, which were brought by Mrs Sartipy, were totally without merit and an egregious abuse of the process of the court, and the order will record that.’ The order was made.

Judges:

Henry Crar J

Citations:

[2017] EWHC 3596 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 12 November 2022; Ref: scu.631446

Grove Park Properties Ltd v The Royal Bank of Scotland Plc: ComC 18 Dec 2018

The defendant bank sought to have excluded allegations of its senior officers putting forward false and misleading cases to support its own claim for similar behaviour in defending its interest rate swap claim.

Citations:

[2018] EWHC 3521 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Litigation Practice

Updated: 12 November 2022; Ref: scu.631429

Tinkler and Another v Elliott: CA 7 Jul 2011

Application for leave to appeal. Litigant in person failing to understand CPR. Leave granted.

Judges:

Rix, Lloyd LJJ

Citations:

[2011] EWCA Civ 1817

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Tinkler and Another v Elliott QBD 15-Mar-2012
The defendant, subject to a civil restraint order, sought leave to appeal against judgment entered against him in his absence. . .
See Also – Tinkler and Another v Elliott CA 10-Oct-2012
The claimant was a litigant in person who said that he had misunderstood the relevant provision of the CPR.
Maurice Kay LJ said: ‘I accept that there may be facts and circumstances in relation to a litigant in person which may go to an . .
See Also – Tinkler and Another v Elliott CA 7-May-2014
The defendant appealed against permission given to the claimant to bring allegations of contempt of court. The claimant was acting in person. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 November 2022; Ref: scu.467248

Dar v Vonsak and Another: QBD 17 Dec 2012

The second defendant insurers appealed against a refusal by the court to allow it to withdraw an admission of liability in respect of a road traffic accident. The insurer said that the fact that it now saw the accident as fraudulent was an exceptional circumstance such as to allow the change.
Held: The appeal failed. The CPR required: ‘(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led the party making the admission to do so;
(c) the prejudice that may be caused to any person if the admission is withdrawn;
(d) the prejudice that may be caused to any person if the application is refused;
(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and
(g) the interests of the administration of justice.
The judge had correctly followed these guidelines and had accepted the difficulties inherent in the evidence.
The experts agreed that the best source of information would be the cars involved. The car at issue had been destroyed, removing a major element in the driver being able to dispute the serious allegation of fraud. The Judge did not arrive at a perverse conclusion. It was one that was entirely reasonable in the circumstances confronting her.

Judges:

Eady J

Citations:

[2012] EWHC 3632 (QB)

Links:

Bailii

Statutes:

Civil Procedure Rules 14 PD 7.2

Jurisdiction:

England and Wales

Citing:

Cited – Gurney Consulting Engineers (A Firm) v Gleeds Health and Safety Ltd Gleeds Management Services Ltd QBD 25-Jan-2006
It is not necessary for a party to seek permission to rely upon an expert’s report, when disclosed by another party, even though the court has not given anyone specific permission to do so. . .
Cited – Woodland v Stopford and Others CA 16-Mar-2011
The claimant appealed against a decision allowing a defendant to withdraw an admission of liability. As a child she had got into difficulties during a class swimming lesson, and had ceased to breathe leaving her with catastrophic hypoxic brain . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 12 November 2022; Ref: scu.467145

Royds Llp v Pine: CA 19 Dec 2012

The court considered an appeal against directions given where a party was not legally represented, and otherwise properly unable to attend personally on an as of right renewed application for leave to appeal. The judge had ordered for the appeal not to be allowed to go ahead unless onle at least of the parties attended in person.
Held: The judge’s direction was too restrictive. It was appropriate for the judge to list it for consideration by a different judge on the papers.

Judges:

Lord Dyson MR, Richards LJ

Citations:

[2012] EWCA Civ 1734, [2013] CP Rep 25, [2013] 1 WLR 717, [2012] WLR(D) 395

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Litigation Practice

Updated: 12 November 2022; Ref: scu.467187

Space Airconditioning Plc v Guy and Another: CA 14 Dec 2012

‘if a judgment contains what the judge acknowledges is an error when it is pointed out, the judgment should be corrected, unless there is some very good reason for not doing so. A judgment should be an accurate record of the judge’s findings and of the reasons for the decision’

Judges:

Mummery, Rimer, Sullivan LJJ

Citations:

[2013] CP Rep 17, [2012] EWCA Civ 1664, [2013] 1 WLR 1293, [2012] WLR(D) 384

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 November 2022; Ref: scu.467134

London and Quadrant Housing Trust v Ansell: CA 19 Apr 2007

The landlord had obtained an order for possession based upon the secure tenant’s failure to pay rent. The order had been suspended. The tenant again fell into arrears, and the landlord chose to issue new proceedings rather than revive the old.
Held: The landlord had that choice. The original order had ceased to be enforceable, and the landlord would not have been able to seek possession under it since 2004. The claim was as freeholder; the secure tenancy was not capable of being revived, and no other tenancy had arisen by virtue of the conduct of the parties.

Judges:

Chadwick LJ, Lloyd LJ, Stanley Burnton J

Citations:

Times 25-Apr-2007, [2007] EWCA Civ 326

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Swindon Borough Council v Aston CA 19-Dec-2002
The tenant had fallen into arrears, and a possession order had been made. Having cleared the arrears, the possession order fell, but the landlord purported to issue a new tenancy agreement, with no security of tenure. They now sought possession . .
Lists of cited by and citing cases may be incomplete.

Housing, Litigation Practice

Updated: 12 November 2022; Ref: scu.251403

Dadourian Group International Inc and Others v Simms and Others: CA 13 May 2004

Application for leave to appeal against worldwide asset freezing order.

Citations:

[2004] EWCA Civ 686

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Dadourian Group International and Another v Simms and others ChD 7-Feb-2008
It was suggested that the use of documents revealed under court disclosure for a further purpose was a contempt of court, and that they were protected by legal professional privilege.
Held: For iniquity to be established ‘there has to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 November 2022; Ref: scu.467192

Joint Stock Company (Aeroflot – Russian Airlines) v Berezovsky and Another: ChD 30 Oct 2012

Action to enforce a money judgment or judgments of the Russian courts holding the two defendants, Boris Berezovsky and Nikolay Glushkov, liable to compensate the claimant, Aeroflot, for fraud perpetrated upon it.

Citations:

[2012] EWHC 3017 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, International

Updated: 12 November 2022; Ref: scu.467114

In re X: CA 24 Jul 2012

X had made, in confidence, an allegation that she had been abused as a child. The alleged perpetrator was now in another relationship, and with children. X resisted the disclosure of her complaint.
Held: An order was made for disclosure. There had been an encounter between X and the mother, and whilst no details had been disclosed it was now untenable not to allow disclosure.

Judges:

Thorpe, Hallett, McFarlane LJJ

Citations:

[2012] EWCA Civ 1084

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – A, Re (Disclosure of Third Party Information) FD 16-Feb-2012
The mother and father disputed contact. It was known that a third party had made a confidential allegation of sexual abuse against the father. Disclosure was sought. The application was resisted on the basis that the woman’s own health would be . .

Cited by:

First appeal – In re J (A Child: Disclosure) CA 21-Sep-2012
X had complained in confidence of an alleged assault by the father of A. Social services had wished to include that disclosure in an investigation of J’s care of A. . .
First Appeal – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.

Information, Litigation Practice

Updated: 12 November 2022; Ref: scu.467055