Right to appeal without the permission of the judge making the order.
References: [2010] EWCA Civ 1290, [2011] 1 FLR 1213, [2011] Fam Law 128
Links: Bailii
Judges: Thorpe, Black LJJ
Statutes: Family Proceedings Rules 1991 8.1(1) 8.1(2)
Jurisdiction: England and Wales
Last Update: 25 October 2020; Ref: scu.426463
PROCEDURE -New evidence-whether such evidence should and could have been adduced before the First-tier Tribunal-whether it is likely to have an important influence on the case – overriding objective- appeal allowed – case remitted to First-tier Tribunal
References: [2015] UKUT 688 (TCC)
Links: Bailii
Jurisdiction: England and Wales
Last Update: 16 October 2020; Ref: scu.558967
Appeal against order for surrender of passport and otherwise to support restraint on a defendant leaving the jurisdiction.
References: [2015] EWCA Civ 1108
Links: Bailii
Judges: Floyd, Bean LJJ
Jurisdiction: England and Wales
Last Update: 15 October 2020; Ref: scu.556210
Renewed application for permission to appeal against a refusal to admit fresh evidence on the appeal
References: [2013] EWCA Civ 1463
Links: Bailii
Judges: Arden LJ
Jurisdiction: England and Wales
Last Update: 23 September 2020; Ref: scu.518493
The SS had claimed public interest immunity (PII) in respect of several documents requested for an inquest into the death of Alexander Litvinenko, a prominent Russian exile. The coroner had rejected the claim for several, and the SS now appealed.
References: [2013] EWHC 3724 (Admin)
Links: Bailii
Judges: Goldring, Treacy LJJ, mitting J
Jurisdiction: England and Wales
This case cites:
These lists may be incomplete.
Last Update: 23 September 2020; Ref: scu.518481
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority decision of the Court of Appeal) The respondent wrongfully delegated its power to dismiss a worker to a disciplinary committee instead of deciding the issue itself. It was that process of delegation to a committee which did not itself have the power to dismiss which led to the declaration that the termination of the appellant’s employment was a nullity and that he was entitled to damages. That was an ultra vires act of the respondent itself. Referring to the ordinary master and servant case, Viscount Kilmuir LC said: ‘This is an entirely different situation from the ordinary master and servant case; there, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here, the removal of the plaintiff’s name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him. It is therefore right that, with the background of this scheme, the court should declare his rights.’ A declaration that a dismissal was null and void would not be granted in the case of an ordinary contract of employment.
Lord Keith of Avonholm said that the case did not involve ‘a straightforward relationship of master and servant’. It involved the validity of certain administrative procedures.
References: [1957] AC 488, [1956] 1 QB 658, [1956] 3 All ER 939, [1957] 2 WLR 106
Judges: Viscount Kilmuir LC, Lord Keith of Avonholm
Jurisdiction: England and Wales
This case cites:
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.250063
The court considered how the court should exercise any jurisdiction to make declarations.
Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the question must be real and not a theoretical question; the person raising it must have a real interest to raise it; and he must be able to secure a proper contradictor ie someone presently existing who has a true interest to oppose the declaration sought.
Lord Dunedin spoke of the Scottish action of declarator: ‘The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.’
References: [1921] 2 AC 438
Judges: Lord Dunedin
Jurisdiction: Scotland
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.237717
(Supreme Court of Canada) The court strongly criticized the mandatory/directory distinction in statutory interpretation: ‘courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?’
References: [1994] 2 SCR 41
Judges: Iacobucci J
Jurisdiction: Canada
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228959
(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity.’
References: (2003) 228 DLR (4th) 693
Judges: Evans JA
Jurisdiction: Canada
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.228960
Parker LJ said of the plaintiff’s application for a review of the decision on her homelessness application: ‘She is entitled to protection with regard to her public law right to have the necessary inquiries made and the decision properly made . . the injustice to the applicant, if she is not housed but is right, is clearly immense . . This is no more than interim protection for as long as it takes to decide the substantive matter . .’
An interim injunction might be discharged where the plaintiff cannot make out the strong prima facie case that is required, where the potential balance of injustice favours not granting an injunction, and where the public interest likewise lies in not granting an injunction.
References: [1989] QB 518, [1989] 1 All ER 1202, [1989] 2 WLR 90, [1989] Fam Law 430
Judges: Parker LJ
Jurisdiction: England and Wales
This case cites:
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Last Update: 22 September 2020; Ref: scu.228956
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance.’
References: [1976] 1 NZLR 630
Judges: Cooke J
Jurisdiction: England and Wales
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228957
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law offers great privileges and great opportunities for those who wish to trade under that regime. But the corporate environment carries with it the discipline that those who avail themselves of those privileges must accept the standards laid down and abide by the regulatory rules and disciplines in place to protect creditors and shareholders. And, while some significant corporate failures will occur despite the directors exercising best managerial practice, in many, too many, cases there have been serious breaches of those rules and disciplines, in situations where the observance of them would or at least might have prevented or reduced the scale of the failure and consequent loss to creditors and investors.’
Hoffmann LJ said: ‘The court is concerned solely with the conduct specified by the Secretary of State . . under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. It must decide whether that conduct, viewed cumulatively and taking into account any extenuating circumstances, has fallen below the standards of probity and competence appropriate for persons fit to be directors of companies.’ and ‘Some of the examples given by the judge are of extenuating circumstances which accompanied the conduct in question. These are matters which it seems to me would always be proper for the court to take into account. On the other hand, if the judge meant that the court was concerned with anything other than whether the conduct, taken in its setting, fell below the appropriate standard, I would respectfully disagree.’
References: [1995] Ch 241, [1995] 3 WLR 1
Judges: Henry LJ, Hoffmann LJ, Neill LJ
Statutes: Company Directors Disqualification Act 1986 6, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987
Jurisdiction: England and Wales
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.182943
Application to set aside judgment entered in default.
References: [2009] EWHC 1692 (Comm)
Links: Bailii
Judges: Field J
Jurisdiction: England and Wales
Last Update: 22 September 2020; Ref: scu.347696
If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: ‘I put rather an emphasis on those last words ‘against those who acted upon the faith that the authority continued.”
An election to avoid a contract is not completed until the decision has been communicated to the other side ‘in such a way as to lead the opposite party to believe that he has made that choice’.
‘Novation’ is a term derived from the civil law and therefore from Roman law. A novation operates where: ‘there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.’
Lord Blackburn said: ‘The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act – I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.’
References: [1882] 7 AC 345, [1882] UKLawRpAC 17
Links: Commonlii
Judges: Lord Blackburn, Lord Selborne LC
Jurisdiction: England and Wales
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223952
References: [2003] EWHC 1381 (Comm)
Links: Bailii
Coram: Mr Justice Morison
Ratio:
Jurisdiction: England and Wales
Last Update: 25 March 2020
Ref: 183566
References: Times 09-Aug-1995, [1995] 1WLR 1373
Coram: Sir Thomas Bingham MR
Ratio: The court addressed the principles upon which a Court will grant interlocutory injunctive relief in harassment cases.
Held: Both the High Court and the County Court had jurisdiction under the 1981 and 1984 Acts to grant interlocutory injunctions in wide terms to restrain conduct that was not in itself tortuous or otherwise unlawful, if such order was reasonably to be regarded as necessary for the protection of a plaintiff’s legitimate interest. The court has power to impose an exclusion zone when granting a non-molestation injunction restraining harassment of the victim by the defendant, provided no unnecessary restraint was placed on the defendant. It would not seem to me to be a valid objection to the making of an exclusion zone order that the conduct to be restrained is not in itself tortuous or otherwise unlawful, if such an order is reasonably regarded as necessary for the protection of a plaintiff’s legitimate interest’ and ‘Neither the statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.’
Statutes: Supreme Court Act 1981 37(1), County Courts Act 1984 38
This case is cited by:
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Last Update: 19 March 2019
Ref: 78757
References: [1986] Ch 80, [1984] 2 All ER 601
Coram: Justice Nourse
Ratio: If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a time when a point is normally to be treated as having been settled at first instance. I think that should be when the earlier decision has been fully considered, but not followed, in a later one. Consistently with the modern approach of the judges of this court to an earlier decision of one of their number . . I would make an exception only in the case, which must be rare, where a third judge is convinced that the second was wrong in not following the first.’
This case is cited by:
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Last Update: 15 March 2019
Ref: 247762
References: [1898] 1 QB 802
Ratio: To obtain an order of mandamus, the applicant must show that he has a sufficient interest.
Last Update: 12 March 2019
Ref: 258764
References: [2011] EWHC 596 (Ch)
Links: Bailii
Coram: Henderson J
Ratio: Order on application for leave to amend particulars of claim after strike out of claim for fraudulent misrepresentation.
Jurisdiction: England and Wales
Last Update: 25 December 2018
Ref: 430613
References: [1977] 1 WLR 1437, [1977] 1 All ER 161, [1977] UKHL TC_52_113, [1980] AC 562, 53 TC 241, [1979] STC 735, [1979] TR 335
Links: Bailii
Coram: Lord Simon of Glaisdale, Lord Russell
Ratio: The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty.
Lord Russell said: ‘Finally section 325 cannot avail the liquidator: . . It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act’ and ‘So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding – I use the word in a non-technical sense – against the property of a company.’ S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. ‘The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ.’
Statutes: Companies Act 1948 325, Taxes Management Act 1970 61
Jurisdiction: England and Wales
This case cites:
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This case is cited by:
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Last Update: 16 July 2018
Ref: 216341
References: [2002] EWHC 2601 (Comm), [2003] 1 All ER (Comm) 277, [2003] 1 Lloyd’s Rep 296
Links: Bailii
Coram: Tomlinson J
Ratio: The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore a constructive total loss (‘CTL’). They said the cause of the loss was not the fire, and the loss was uninsured.
Held: Abandonment of the subject-matter insured will take place by operation of law when the underwriters settle the claim. Section 61 is thus satisfied. The insured has been deprived of his right of choice envisaged by Section 61. He has no option but to treat the vessel as a total loss. Section 62(7) says in terms that notice of abandonment is unnecessary where when the insured receives information of the loss there would be no possibility of benefit to the insurer if notice were given to him. The Claimants were entitled to recover as for a CTL.
Statutes: Marine Insurance Act 1906 6162(7) 77(2)
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Jurisdiction: England and Wales
Last Update: 19-Nov-17
Ref: 178942
References: [2013] EWHC 2672 (QB)
Coram: Simon J
Ratio: Where Article 4 applies, a party must bring forward evidence on foreign law and cannot simply rely on a presumption that in the absence of evidence foreign law should be assumed to be the same as English law.
Simon J said: ‘ It is not consonant with the overriding objective of the Civil Procedure Rules, in a case where the 1995 Act applies, for a party either to decline to plead the relevant provisions of the applicable law or to rely on a presumption that a foreign law is the same as English law. Such an approach is evasive. There may of course be an issue as to which particular law applies, but that is a different matter. The ‘parochial’ approach, which ‘presupposes that it is inherently just for the rules of the English domestic law of tort to be indiscriminately applied regardless of the foreign character of the circumstances and the parties’, is precisely the mischief which the Law Commission sought to remedy, and which was remedied by the 1995 Act’
Statutes: Rome II Regulation 4
Jurisdiction: England and Wales
This case is cited by:
(This list may be incomplete)
Last Update: 13 July 2017
Ref: 566200
References: [1923] AC 603
Ratio: The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
This case is cited by:
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Last Update: 22 March 2017
Ref: 199439
References: [1986] 2 Lloyds Rep 221
Coram: Sir Roger Ormrod
Ratio: The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend.
Held: When comparing the test to be met by a defendant which required there to be ‘an arguable case’, with the standard laid down in Evans in respect of a defendant seeking to set aside a regular judgment signed in default, the Evans case clearly contemplated that 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. It must be more than merely arguable.
Sir Roger Ormrod: ‘. . . 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. (In Evans v. Bartlam there was an obvious defence under the Gaming Act and in Vann v. Awford a reasonable prospect of reducing the quantum of the claim.) Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff’s assertion that there is no defence) were the same as that required to displace a regular judgment of the Court and with it the rights acquired by the plaintiff. In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The ‘arguable’ defence must carry some degree of conviction.’
Statutes: Rules of the Supreme Court Order 14
This case is cited by:
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Jurisdiction: England and Wales
Last Update: 08-Feb-17
Ref: 180850
References: [1998] EWCA Civ 1257
Links: Bailii
Ratio:
Last Update: 06 February 2017
Ref: 144736
References: [1998] EWCA Civ 233, [1998] EWCA Civ 233
Links: Bailii
Coram: Lord Justice Swinton Thomas Lord Justice Mummery
Ratio: The plaintiffs operated a car wash, and the respondents supplied machinery for car washes. The plaintiffs claimed that machinery supplied was defective and in breach of warranty. The defendant sought leave to appeal against an order allowing the plaintiff to amend their statement of claim, and to adduce additional expert evidence. The defendant argued that allowing the amendments shortly before a date fixed for trial would seriously prejudice them.
Held: The judge’s decision was one within his discretion, and could not be said to be irrational. Leave to appeal refused.
This case cites:
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Last Update: 03 February 2017
Ref: 143711
References: [2011] EWHC 1851 (Ch)
Links: Bailii
Coram: Sales J
Ratio: The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the judgment to be handed down. It was not the function of a draft judgment to provide an opportunity for the parties to settle. Nor was it appropriate to give a partial judgment without the facts which would allow it to be understood. The defendants were perhaps unnecessarily concerned at the risk of an appeal.
Statutes: Limited Liability Partnerships Act 2000, Companies Act 1985
This case cites:
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This case is cited by:
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Jurisdiction: England and Wales
Last Update: 05-Dec-16
Ref: 441823
References: Ind Summary 13-Mar-1995
Ratio: Directions to achieve reduction in cost of hearings – court taking more control.
Jurisdiction: England and Wales
Last Update: 01-Dec-16
Ref: 84973
References: Gazette 14-Oct-1992
Ratio: No need to name judge in chancery motions/ companies court summonses.
Jurisdiction: England and Wales
Last Update: 01-Dec-16
Ref: 84915
References: Times 04-Apr-1994, [1994] 3 All ER 180
Coram: Steyn LJ, Peter Gibson LJ and Sir Tasker Watkins
Ratio: An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time when the English court becomes definitively seised of proceedings’. The ECJ in the Zelger case had ’emphasise[d] the importance of certainty in national procedural laws’, and that ‘a ‘date of service’ rule would be readily comprehensible not only in England but also in other Contracting States.’
Statutes: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
This case cites:
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This case is cited by:
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Last Update: 01-Sep-16
Ref: 84257
References: Gazette 03-Feb-1993
Ratio: Other arbitrators awards in other proceedings not admissible for comparables.
Last Update: 31-Aug-16
Ref: 82938
References: (1927) 71 SJ 911, [1927] WN 276, (1927) 64 LJNC 431
Coram: Tomlin J
Ratio: Tomlin J set out the the practice on making an order such as would keep the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement.
Held: A provision in the order which required one party to refrain from running a business in competition with the other party could not be enforced unless and until the court made an order for specific performance or for an injunction. Provisions in such an order which might require action by the court, such as releasing funds held in court, or an order for costs, must be included in the body of the order, and not in the schedule. Until a second order has been sought, it would not be possible to apply to commit the party in breach for contempt of court.
This case is cited by:
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Last Update: 29-Aug-16
Ref: 412283
References: Gazette 10-Jul-1996, Times 08-Apr-1996, [1998] QB 22
Coram: Mr Justice Neill, Lord Justice Peter Gibson and Lord Justice Hobhouse
Ratio: There was no maintenance in the assignment of debt though litigation was required to recover it. It remains objectionable to traffic in litigation. The assignment had no essence in maintenance and was contemplated by statute, and was effective.
Statutes: Law of Property Act 1925 136
This case cites:
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This case is cited by:
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Last Update: 25-Aug-16
Ref: 78855
References: [1893] AC 207
Coram: Lord Herschell
Ratio: There were concurrent findings on the question whether a vessel was showing a red light when it came into collision with another vessel. The House was asked to disturb the findings of fact.
Held: A mere finding of fact in which both the courts below had concurred ought not to be disturbed unless it could be clearly demonstrated that the finding was erroneous. Lord Herschell said: ‘In the present case, although I might probably myself have come to a different conclusion, I cannot say that any cardinal fact was disregarded or unduly estimated by the courts below. I can lay hold of nothing as turning the balance decisively the one way rather than the other. I think the decision of the question of fact at issue depends upon which way the balance of probability inclines, and I am not prepared to advise your Lordships that it so unequivocally inclines in the opposite direction to that indicated in the judgments of the courts below, that this House would be justified in reversing the judgment appealed from.’ and
‘Now I quite agree with what has been said in this House in previous cases as to the importance of not disturbing a mere finding of fact in which both the Courts below have concurred. I think such a step ought only to be taken when it can be clearly demonstrated that the finding is erroneous. .’
This case is cited by:
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Last Update: 07-Aug-16
Ref: 272833
References: 470 US 564 (1985), 53 USLW 4314, [1985] USSC 57, 105 SCt 1504, 84 L Ed 2d 518
Links: USSC
Ratio: United States Supreme Court – The court explained some considerations for the deference to be given by an appellate court to findings of fact made by a lower court: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ . . rather than a ‘tryout on the road.’ . . For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.’
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Last Update: 03-Aug-16
Ref: 540458
References: [1865] EngR 431, (1865) 34 Beav 654, (1865) 55 ER 788
Links: Commonlii
Ratio:Lord Chelmsford L.C. said, of an argument by that college that the leave of the Charity Commissioners ought to have been obtained to the plaintiff’s proceedings but had not been, that: ‘The objection if persisted in must prevail, but in that case [he] would give leave to apply to the commissioners, and he would suspend the decree for that purpose.’
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Last Update: 20-Jul-16
Ref: 281343
References: [2015] EWFC 8
Links: Bailii
Coram: Peter Jackson J
Ratio:This judgment concerns expert evidence in family proceedings relating to (i) the capacity of a witness to give evidence and (ii) the witness’s veracity.
Last Update: 20-Jul-16
Ref: 542926
References: No 37 of 2000, [2001] UKPC 58
Links: PC, PC, PC, Bailii
Coram: Lord Slynn of Hadley Lord Hoffmann Lord Rodger of Earlsferry Sir Martin Nourse Sir Kenneth Keith
Ratio:(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and the respondents appointed. They obtained a continuing Mareva injunction against the appellant as executor of her husband’s estate in the Bahamas.
Held: An officer of a company owes a fiduciary duty to the company not to use his knowledge of its affairs by making a profit from dealing in what he knows to be a false market in its shares. Interlocutory jurisdiction is ordinarily ancillary to substantive jurisdiction. There was evidence that the appellants had tried move assets beyond the jurisdiction. The judge’s discretion had been exercised properly. An appeal on the ground of delay had not been pleaded.
This case cites:
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Last Update: 10-Jul-16
Ref: 167223
References: [1984] 2 Lloyd’s Rep 66
Coram: Robert Goff LJ, Ackner LJ
Ratio:The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.’ Ackner LJ: ‘Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.’
This case cites:
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This case is cited by:
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Last Update: 06-Jul-16
Ref: 235381
References: [1993] 2 Lloyd’s Rep 68
Coram: Cresswell J
Ratio:Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation Whitehouse v. Jordan
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise . . An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion . . 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. . . 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one . . In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.’
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Last Update: 22-Jun-16
Ref: 226225
References: , [1841] EngR 1156, (1841) Car & M 57, (1841) 174 ER 407 (A)
Links: Commonlii
Ratio:If in assumpsit on a bill of exchange by indorsee against acceptor, with a count upon an account stated, the defendant plead to the firat count that he did not accept, and do not plead at all to the second count, and the award of venire be in the usual form to try ; the Judge at Nisi Prius will try the issue joined, and, if a verdict pass for the plaintiff, a nolle prosequi should be entered as to the count upon an account stated.
Last Update: 13-Jun-16
Ref: 309334
References: Unreported, 10 February 1993
Coram: Beldam, Dillon, and Roch LJJ
Ratio:The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the plaintiffs, who had served their time afer convictions for robbery which were subsequently quashed. They said the confessions were fabricated. Their appeals were allowed after evidence that officers had improperly procured the conviction of other defendants in similar ways. To succeed the plaintiffs had to prove that prosecutions were unfounded. The officers’ state of mind was essential. Documents were sought to be discovered to provide evidence of similar facts in proof of the misconduct the prosecution. Evidence of the officers’ dishonesty went beyond discrediting him as a witness. They showed similar conduct in other cases. The judge refused specific discovery saying it was not similar fact evidence. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were merely attacks on credit, and the plaintiffs already possessed ample evidence for this purpose. The appeal was allowed. At discovery the court lookd to potential rather than actual admissibility. ‘In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.’ For the purpose of specific discovery, it was enough to show ‘sufficient similarity’ (as opposed to a ‘striking similarity’) between the other conduct and the conduct in the present action. He dismissed the ‘mere propensity’ argument in these terms: ‘I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.’
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Last Update: 09-Jun-16
Ref: 186051
References: [1864] EngR 173, (1864) 4 De G J & S 211, (1864) 46 ER 899
Links: Commonlii
Ratio Occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of the Court of Chancery by injunction, except in extreme cases. Therefore, where a railway company carried down to and deposited on a siding to their line manure which was occasionally not proper manure, and they occasionally allowed it to remain there longer than it ought to have remained : Held, in a suit by a neighbouring landowner for an injunction to restrain the nuisance and for damages:
1. That the court would not interfere by way of injunction.
2. That the Court would not enter into the question of damages, the case being one which, in the judgment ofthe Court, could be more effectually disposed of at law than in equity, and Sir Hugh Cairns’s Act (21 & 22 Vict. c. 27) only giving the Court of Chancery jurisdiction to give damages in any case where a bill is properly filed in it, while Mr. Rolt’s Act (25 & 26 Vict. c. 42) does not make it compulsory on the Court so to do.
Last Update: 21-Apr-16
Ref: 281887
References: [1847] EngR 496, (1846) 4 CB 321, (1847) 136 ER 530
Links: Commonlii
The defendant, having entered an appearance in person as ‘CFAW, Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick,’ delivered a plea to the jurisdiction, with an affidavit of verification, respectively intituled ‘CFAW, sovereign Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick.’ The plaintiff, treating the plea as a nullity, signed judgment. The court refused to set aside the judgment, without an affidavit of merits.-An affidavit with a jurat signed, ‘AB, a com’. &c,’ is sufficient.
Last Update: 18-Feb-16 Ref: 301112
References: Unreported 4 February 1982
Coram: Lord Justice-Clerk Wheatley
The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage.
Held: Lord Justice-Clerk Wheatley said: ‘An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong.’
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Last Update: 02-Feb-16 Ref: 559415
References: [1863] EngR 591, (1863) 14 CB NS 719, (1863) 143 ER 627
Links: Commonlii
A mandamus will not in general be granted for the examination of witnesses in one of the British coIonies, where the same end may be attained by the less expensive and less dilatory proceeding by commission.
Last Update: 29-Jan-16 Ref: 283246
References: [1803] EngR 712, (1803) 4 East 294, (1803) 102 ER 843
Links: Commonlii
Last Update: 12-Dec-15 Ref: 344753
References: [1987] 1 NZLR 1 CA, (1986) 1 PRNZ 183, CA123/86, [1986] NZCA 112
Links: Nzlii
Coram: Somers, Casey, Hillyer JJ
Court of Appeal of New Zealand – The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.
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Last Update: 10-Nov-15 Ref: 183279
References: , [1837] EngR 1060, (1837) CP Coop 255, (1837) 47 ER 494 (B)
Links: Commonlii
One Defendant appeals. Order made thereupon dismissing bll upon grounds equally applicable to other Defendants who did not join in the appeal. Such other defendants can have no benefit of such order, although it renders the decree useless.
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Last Update: 26-Oct-15 Ref: 314177
References: [2015] EWFC 79
Links: Bailii
Coram: Sir James Munby P FD
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of further medical recods from the care proceedings. His medical reputation had been severely damaged by reporting of the complaints.
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Last Update: 07-Oct-15 Ref: 552792
References: [1829] EngR 422, (1829) 3 Sim 23, (1829) 57 ER 909
Links: Commonlii
An application to amend, under the 13th Order, must be supported by a joint affidavit of the Plaintiff arid solicitor.
Last Update: 26-Sep-15 Ref: 322290
References: Times 22-Jul-1899
Coram: Darling J
A company claimed for money owed upon calls upon its shares. The defendant, Woodcock, admitted liability to the company but claimed against a Captain Rising that he held the shares as his nominee. The judge admitted in evidence terms of the negotiation between the plaintiffs and Captain Rising in which Captain Rising admitted ownership of the shares standing in the name of the nominee. The judge expressed doubts whether he should have admitted the evidence and said he did so because he had been pressed to do so by counsel. The protection afforded by ‘without prejudice’ does not extend to third parties.
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Last Update: 24-Sep-15 Ref: 253693
References: [1818] EngR 233, (1818) 5 Price 522, (1818) 146 ER 682
Links: Commonlii
A plaintiff having arrested two of the partners on a quo minus, and proceeded against an absent third by ven. fac. Ad. resp. under which issues, and increased issues, had been levied on the partnership goods – the Court refused, on cause shewn against a rule for that purpose, to set aside the proceedings, and order the money levied to be restored, and the effects to be delivered up, although it was sworn, on the part of the absent defendant, that he was absent on his business of mariner, and not for the purpose of avoiding proceedings. – N. – Such a rule discharged with costs.
Last Update: 21-Sep-15 Ref: 332233
References: , [1834] EngR 781, (1834) 1 Ad & E 563, (1834) 110 ER 1322
Links: Commonlii
A River Navigation Act provided that no proceeding to be taken in pursuance thereof should be removed by certiorari. By a subsequent statute for improving the same navigation, it was enacted, that all the powers, provisions, exemptions, rules, remedies, regulations, penalties, forfeitures, articles, matters, and things whatsoever, contained in the former Act, should be in full force, and extend to and be applied and enforced as to that Act and the matters therein contained, in as full a manner to all intents and purposes as if therein re-enacted: Held, that these were sufficient words to take away the certiorari on proceedings under the latter Act.
Last Update: 07-Sep-15 Ref: 317457
References: [1871] EngR 36, (1871) 14 Moo Ind App 203, (1871) 20 ER 763
Links: Commonlii
The High Court at Calcutta, at the instance of the Appellant’s Counsel, agreed to confine the decision of that Court to one point, with an undertaking that no appeal to Her Majesty in Council should be made from the decree. Notwithstanding such undertaking, an appeal was brought to England. The High Court certified in the record the undertaking.
Held: the Judicial Committee, on a preliminary objection being taken to the hearing, on the ground of the incompetency of the appeal, said that such undertaking precluded an appeal.
References: [1844] EngR 358 (A), (1844) 12 Sim 362
Links: Commonlii
Under the 24th Order of August 1841, the Court will allow the Plaintiff to enter a memorandum of service of a copy of the bill without an affidavit, stating the nature of the suit, and that no direct relief is sought against the Defendant who has been served.
References: (1997) 71 ALJR 903
Courts should be reluctant to extend the immunity given to witnesses: ‘the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’
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References: [1849] EngR 1090, (1849) 14 QB 418, (1849) 117 ER 164
Links: Commonlii
If a plea be so pleaded that it is manifestly intended to embarrass the plaintiff, the Court, on affldavit that the plea is false will set it aside. As, where, to an action by the second indorsee of a bill of exchange against the acceptor, defendant pleaded that the acceptance was obtained from him by fraud of the drawer, that the bill was overdue when indorsed by the drawer to the first indorsee, and that both indorsees at the time of taking the bill, had notice of the premises. A plea under such circumstances is not treated as a mere irregularity.
References: [1865] EngR 589, (1865) 2 Dr & Sm 549, (1865) 62 ER 728
Links: Commonlii
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the
suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.
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References: [1864] EngR 762, (1864) 2 Dr & Sm 285, (1864) 62 ER 630
Links: Commonlii
Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund.
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References: [2007] EWHC 2868 (Ch)
Links: Bailii
References: (1855) 5 El & Bl 301, [1855] EngR 585, (1855) 119 ER 493
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Coram: Crompton J, Lord Campbell CJ
The Court has jurisdiction to set aside a judgment on the ground of mistake if an application to do so is made within a reasonable time after the judgment has been acted on. ‘the application must be made within a reasonable time after the judgment is acted on; and the only point on which I have had some doubt in the present case is, whether the lapse of time has not been so considerable that it ought in our discretion to be in itself a bar to this application’ and ‘lapse of time becomes after a season a bar, as soon as the Court in its discretion sees that it has been such as must work prejudice.’ and ‘I think that, in the exercise of this discretion, time is of great importance.’
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References: Unreported 18 July 1958
Coram: Lord Cameron
The pursuer, a steelworker, had been diagnosed with pneumoconiosis. He had worked for a previous company, and had claimed damages from them
Held: In an exceptional case such as this, a judgment may not conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B’s liability to A.
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References: [1845] EngR 394, (1845) 13 M & W 628, (1845) 153 ER 262
Links: Commonlii
Coram: Parke B
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
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References: [1850] EngR 243, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, (1849) 17 Sim 38, (1849) 60 ER 1041
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The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain those actions. The defendant had also challenged the validity of the existing orders.
This case cites:
References: [1798] EngR 236, (1798) 1 Bos & Pul 329, (1798) 126 ER 932
Links: Commonlii
Where a general verdict has been given on two counts, one of which is bad, and it appears by the Judge’s notes that the jury calculated the damages or evidence applicable to the good count only, the Court will amend the verdict by entering it on that count, though evidence was given applicable to the bad count also.
References: Unreported, December 7, 1990
Coram: Millett J
It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to a knowing receipt abroad of the proceeds of such fraud. The rules allowing service out of the jurisdiction where the defendant’s alleged liability arose ‘out of acts committed, whether by him or otherwise, within the jurisdiction’ only applied if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to knowing receipt abroad of the proceeds of such a fraud.
Statutes: Rules of the Supreme Court Order 11 r1(1)(t)
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Last Update: 16-Dec-15 Ref: 245213
References: (2006) 94 SASR 64, [2006] SASC 42
Links: Austlii
Coram: The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant entitled to injunction restraining the use of the same documents which were already in the plaintiff’s possession on the ground of an equitable obligation of confidence and public interest immunity – Where confidential information in one document had already been disclosed to a third party – Whether the defendant suffered detriment – Whether misapplication of iniquity rule – Whether the documents were the subject of public interest immunity – Discussion of the principles regarding equitable doctrine of restraining use or publication of confidential information.
Held: It is the circumstances by which the person in possession of the confidential information has acquired that possession rather than the circumstances in which the information was imparted to the initial recipient that is the relevant consideration in considering whether there was a breach of confidence – No conditions of confidentiality attached to disclosure of 10 of the documents – Recipient unaware a mistake had been made if the confidential information had been disclosed unintentionally – No obligation of confidence arose – Unnecessary to consider issues of detriment or application of the iniquity rule – No error by trial judge in failing to find documents subject to public interest immunity – Even if confidentiality had not been lost, trial judge correct to find waiver of privilege – Both appeals allowed for the limited purpose of having the claim of confidentiality with respect to one document remitted to the trial judge for further consideration – Otherwise each appeal dismissed.
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References: [1850] EngR 499 (A), (1850) 5 Exch 311
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The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court.
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References: [1979] 2 Lloyd’s Rep 491, [1981] 1 QB 65
Coram: Donaldson J, Robert Goff J
Creditors of the defendant who was subject to a Mareva injunction applied to the court to authorise the repayment of a loan out of monies otherwise subject to the order.
Held: The purpose of a freezing order is to avoid dissipation of a defendant’s assets in order to avoid a judgment, it is only bona fide debts in the ordinary course of business of a defendant whose assets are frozen that will be permitted to be paid out, including debts which are not themselves enforceable.
Robert Goff J said: ‘Mr. Hobhouse submitted that the purpose of the Mareva jurisdiction was to freeze a foreign defendant’s assets in this country to ensure that there is a fund available in this country from which the plaintiff will be able to satisfy a judgment. In support of this he relied in particular on the form of the order usually made in these cases which restrains the defendant from dealing with his assets within the jurisdiction and from removing his assets from the jurisdiction. I do not, however, see that the usual form of the order as such assists his argument. As was made plain by Mustill J. in the Third Chandris case, the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction.’
and ‘All the interveners are asking is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do.’
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References: [2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
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Coram: Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.
Statutes: Tribunals of Inquiry Evidence Act 1921 1(3)
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References: (1880) 5 App Cas 857
Coram: Lord Blackburn
Lord Blackburn spoke of the presumption at common law that the word ‘person’ in an Act of Parliament includes ‘corporations’: ‘Circumstances, and indeed circumstances of a slight nature in the context, might show in which way the word is to be construed in an Act of Parliament . . whenever you can see that the object of the Act requires that the word ‘person’ shall have the more extended or less extended sense, then, whichever sense it requires, you should apply the word in that sense.’
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References: (1881) 8 R 747
Coram: Lord Young
Lord Young said that absolute impecuniosity is never the sole reason for making an order requiring payment of a sum by way of security for the costs on an appeal: ‘The conduct of the cause may be such, or other matters may transpire, which may make such an order necessary, but absolute impecuniosity will never be taken as the sole ground for making a party find caution for expenses.’
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References: [1843] EngR 1219, (1843) 12 Sim 361, (1843) 59 ER 1170
Links: Commonlii
Although a Defendant’s name is omitted in the note at the foot of the bill, he must put in an answer, though it be a mere formal one.
References: [1820] EngR 359, (1820) 3 B & A 581, (1820) 106 ER 773 (B)
Links: Commonlii
By 49 G 3, c 68, s 5, ten clear days’ notice of the intention to appeal is required.
Held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions.
One Joseph Stinton, having had an order of filiation made on him, as the father of a bastard child, served a notice of appeal to the Quarter Sessions for the county of Hereford, on the morning of the 9th of October. The sessions were holden on the 19th of the same month; and the Court refused to enter on the appeal, being of opinion that the notice was insufficient, the statute 49 G. 3, e. 68, s. 5, requiring that the person aggrieved by such an order should give notice ten clear days before the Quarter Sessions, of his intention to appeal, and the cause and matter thereof. W. E. Taunton having obtained a rule nisi for a mandamus to the justices to receive the Abraham now shewed cause against it, and relied on the words of the statute, which could only be satisfied by a notice wherein there should be ten clear days, exclusive of the day of serving it and the day of holding the sessions.
WE Taunton, contra, contended that the word ‘clear’ meant only complete days ; and referred to the computation of the octave of Saint Hilary, and the quarto die post of the term, to shew that the days of a stated period were in law generally reckoned both inclusively, and that all that the Legislature had in view, in this instance, was to prevent such a computation [582] being used. But the Court were of opinion, that ten clear days meant ten perfect intervening days between the act done and the first day of the sessions, and held, therefore, that the notice was defective ; and they referred to Roberts v. Stacey (13 East, 21).
Rule discharged.
This case is cited by:
References: [1850] EngR 769, (1850) 3 Mac & G 4, (1850) 42 ER 162
Links: Commonlii
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the warrant ceased to be the order of the Vice-Chancellor, and it could not be challenged. On the return of a writ of habeas corpus, the court’s task is limited to ensuring that the custody arises under a court having authority in that behalf.
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References: (1831) 2 B & Ad 663, [1831] EngR 686, (1831) 109 ER 1290
Links: Commonlii
Coram: Lord Tenterden CJ
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal statute, and were proceeding to hear and determine the same, when the plaintiff (being an attorney) entered the police office with the informer, not as his friend or as a spectator, but for the avowed purpose of acting as his attorney and advocate touching the information ; and as such attorney and advocate, without the leave, and against the will, of the justices, was taking notes of the evidence of a witness then under examination before them, touching the matter of the said information, and was acting and taking a part in the proceedings as an attorney or advocate on behalf of the informer; that the above two defendants stated to the plaintiff, that it was not their practice to suffer any person to appear and take part in any proceedings before them as an attorney or advocate, and requested him to desist from so doing; and although they were willing to permit the plaintiff to remain in the police office as one of the public, yet that he would not desist from taking a part in the proceedings as such attorney or advocate, but asserted his right to be present, and to take such part, and to act as such attorney and advocate for the informer; and unlawfully, and against the will of the justices, continued in the police office, taking part and acting as aforesaid, in contempt of the justices ; whereupon, by order of the above two defendants, the other defendants turned the plaintiff out of the office :
Held: on demurrer, that this was a good plea, inasmuch as no person has by law a right to act as an advocate on the trial of an information before justices of the peace, without their permission.
Lord Tenterden CJ said: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the Justices.’
This case is cited by:
References: [1842] EngR 189, (1842) 6 Beav 131, (1842) 49 ER 775
Links: Commonlii
Where deeds are impeached for fraud, the mere allegation of fraud by the bill will not entitle the Plaintiff to an order for their production ; on the other hand, in order to obtain a production, it is not necessary that the fraud should be admitted by the answer, the Court must look at the circumstances of each case.
Order made for the production of a deed impeached for fraud, though the fraud was denied by the answer, the case on the whole being such as to render an inspection proper.
References: , [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051
Links: Commonlii
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and the other parties. Where the partners in a Company or partnership are numerous, a bill may be filed by some of the partners on behalf of themselves and the other partners to rescind the contract. In a case where it is manifest, from the circumstances, and the evidence, that it is for the benefit of all the partners that the contract should be rescinded. A contract for the sale of iron mines was rescinded on the ground of fraudulent misrepresentations of the value of the estate, and of the prices of ironstone and other materials, and of the quantities of materials required for the manufacture of iron, notwithstanding possession had been taken, the mines worked, and other acts of ownership had been exercised, and notwithstanding some acts in confirmation of the contract.
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References: Unreported, 18 July 2001
Coram: Hallett J
The Claimant complained about the late disclosure of surveillance evidence.
Held: Balancing the Defendant’s entitlement to use surveillance evidence effectively, against the general case management goal of openness and a ‘cards on the table’ approach, the court found in favour of the Defendant.
Hallett J said: ‘In my judgment, in the circumstances of this case -and I emphasise in the circumstances of this case -the defendant’s solicitors were entitled to hold on to the video recording for a reasonable period of time. This was not simply a case of trying to ambush the claimant at trial. The defendant’s insurers not surprisingly wished to assess the evidence in their possession with the claimant’s up-to-date account before disclosing it. I say not surprisingly in the light of the history of the litigation as I have outlined it. They wanted to use it effectively as cross-examination material. I accept therefore the explanation from Mr Curtis to which I have already referred.
What therefore is a reasonable time in the circumstances of this litigation?
Mr Curtis made it plain in August 2000 that although the defendant’s insurers were prepared to wait for the witness statement until the report from the doctor was available, they wished to have the claimant’s up-to-date witness statement at the same time. They were operating on the basis the medical report would be available within a reasonable time.
They also indicated they had no objection to there being an interim statement from the claimant which could be updated if necessary. They wished to have this material, as they said in their letter, to assess their position when it came to possible negotiations and attempts at settlement. They continued to press for the witness statement and up-to-date schedule, but the claimant’s solicitors seemed to indicate that one would be available as soon as possible. Despite that fact, no up-to-date witness statement or schedule was produced until December.
In my judgment the defendant’s solicitors were entitled to press for an up-to-date witness statement and schedule, and to press for documents of that kind in the summer of 2000. They were entitled to know what the claimant was saying himself, not merely what he had reported to Dr Supramamian. It is right to say that on receipt of the doctor’s report in October the defendant’s insurers would know what the claimant had told him, but it is not unknown in my experience for a claimant to say that a doctor has misunderstood what he or she has said or has failed to record other significant matters that have been said. I entirely understand and sympathise therefore with Mr Curtis’ attitude that he wished to know what the claimant himself was saying.
In any event, it became clear in October that the doctor had to reconsider the question of how the accident occurred yet the trial date was looming in January 2001. I agree entirely with the Master that the claimant’s solicitors should and could have served an up-to-date witness statement from the claimant long before the time that they did. Once served, I have no doubt the video recording would have been served upon them.’
This case is cited by:
References: , [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)
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A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.
This case is cited by:
References: [1853] EngR 512, (1853) 8 Exch 697, (1853) 155 ER 1532
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An outlaw cannot enforce payment of damages recovered in an action of libel by sciere facias on th erecognisance of the Crown, under the 60 Geo J c ( s8 and 11 Geo 4 & 1 Will 4, e 73, s 3. And therefore, where notice of a rule to stay proceedings on the ground of his outlawry was served on the Attorney-General and he did not appear, the Court made the rule absolute.
References: Times 09-Nov-1999
Coram: Neuberger J
Neuberger J gave examples of cases where a judge might revisit his decision: a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given.
This case is cited by:
References: [1845] EngR 1207 (A), (1845) 8 Beav 575
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The Court will not prospectively dispense with the usual oath of the messenger to whose custody an answer is confided.
References: [1842] EngR 1042 (A), (1842) 4 Man & G 843
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Service of a declaration or ejectment upon a person found upon the premises, but not shewn to be resident there. Held to be insufficient.
References: [1819] EngR 635, (1819) 4 Madd 396, (1819) 56 ER 751 (B)
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A Plaintiff moving, as of course, to amend his bill after he has taken exceptions to the answer, waives his exceptions ; he must move specially for liberty to amend, without prejudice to the exception.
References: 130 ER 59, (1823) 1 Bing 145, [1823] EngR 355, (1823) 1 Bing 145, (1823) 130 ER 59 (A)
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This case is cited by:
References: [2008] EWHC 1729 (Comm), [2008] 2 CLC 258,
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Coram: Beatson J
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved; it is difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: 1) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection; It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory; It may inspect the documents; At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets.
This case is cited by:
(This list may be incomplete)
Last Update: 11-Feb-16 Ref: 271151
References: [1844] EngR 988 (A), (1844) 7 Man & G 35
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Where a revising barrister having assented to the substance of a special case agreed upon between the parties thereto, but died without having finally settled the terms in which the statement should be made, the court refused to allow the case to be entered. Whether, supposing the assent of the revising barrister to have been given to the special case in its terms, the court would allow the case to be entered without his signature after his death, quaere.
References: [1999] EWCA Civ 1650
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Coram: Waller, Mance LJJ
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.
This case cites:
References: , [1839] EngR 1140, (1839) 10 Sim 345, (1839) 59 ER 647
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After the Defendants had answered the bill, one of the Plaintiffs died; upon which a bill of revivor was filed, praying that the Defendants might answer it. The defendants, in their answer, admitted the right to revive, and stated that, since answering the original bill, they had become bankrupt, and obtained their certificates. Held, that those statements were not impertinent.
References: , [1838] EngR 772, (1838) 3 My & K 711, (1838) 40 ER 1100
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This case is cited by:
References: Unreported, 16 May 1997
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it.
This case is cited by:
References: [1816] EngR 865, (1816) 2 Mer 71, (1816) 35 ER 867 (B)
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This case cites:
This case is cited by:
References: [2004] EWHC 3352
Coram: Sumner J
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give effect to the overriding objective.
2. Among the matters to be considered will be:
(a) The reasons and justifications for the Application which must be made in good faith;
(b) The balance of the prejudice to the parties and whether a party has been the author of any prejudice they might suffer;
(c) The prospect of success of any issue arising from the withdrawal of an admission;
(d) The public interest in avoiding possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvoring.
3. The nearer any Application is to a final hearing, the less chance of success it will have, even if the party making the Application can establish clear prejudice. This may be decisive if the application is made shortly before the hearing.’
Statutes: Civil Procedure Rules 14
This case is cited by:
References: (1996) 141 ALR 1, (1996) 186 CLR 574, (1996) 71 ALJR 131, [1997] Aust Torts Reports 81-412, (1996) 20 Leg Rep 24
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Coram: Dawson, Toohey, Gaudron, Gummow JJ
High Court of Australia – Torts – Joint tortfeasors – Release – Effect of release of one joint tortfeasor on other joint tortfeasors – Effect on common law of s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) – Whether cause of action against joint tortfeasors one and indivisible.
Defamation – Defences – Innocent dissemination – Whether available to television station which retransmits unchanged to different area a program produced by another – Whether television station a subordinate publisher.
References: [1972] 2 Lloyd’s Rep 120
Coram: Brandon J
The plaintiff shipowners claimed damages for detention following a collision with the defendants’ ship. There was an issue as to how long the ship repairs would have taken if they had been done at Bremen. The defendants adduced evidence on this point in the form of an exchange of letters.
Held: In considering what weight to give to the letters under section 6(3) of the Civil Evidence Act 1968, the court identified relevant circumstances, and said also that it was necessary to take account of the fact that the evidence was unsworn and could not be tested by cross-examination. This was particularly important where the evidence related to hypothetical rather than actual facts.
Brandon J said: ‘My view is quite simply that matters of this importance, in a case of this kind, should be proved by oral evidence, and that letters obtained at the time and in the way that these were obtained should have little weight attached to them. I cannot think that the Civil Evidence Act 1968, was intended, in general, to change the long established system by which seriously disputed central issues in civil cases are tried on oral evidence, given on oath and capable of being tested by cross-examination, and to substitute for it a system of trial on unsworn documents brought into existence by parties to the proceeding post litem mortam, and I do not think the Act should be used, or rather abused, so as to produce such a result.’
Statutes: Civil Evidence Act 1968 6(3)
This case is cited by:
References: [1855] EngR 839, (1855) 11 Exch 446, (1855) 156 ER 906
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O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books
Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff’s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued.
Statutes: Common Law Procedure Act 1852 226
References: [1853] EngR 1103 (A), (1853) 18 Beav 74
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Motion to pay money into Court, on a certificate of the Chief Clerk, signed and approved by the Judge, but made before the expiration of the eight days, refused.
References: [1855] EngR 778, (1855) 2 K & J 28, (1855) 69 ER 680
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A party to a cause, filing or giving notice to read an affidavit before the evidence is closed, may be cross-examined upon such affidavit at once, without waiting until the evidence is closed.
A party having filed or given notice to read an affidavit is not at liberty to withdraw it.