Category: Litigation Practice

Allen v Sir Alfred McAlpine and Sons Ltd: CA 1968

The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were fought, the court which tried it would have to assess what those chances were. But on this issue the plaintiff would be in a much more advantageous position than if he had sought, despite the inordinate delay, to establish liability against the defendant in the action which had been dismissed. Not only would there be available to him any advice or material which had been given or obtained by his solicitor in support of his case in the dismissed action, but the principle of Armory v Delamirie (1722) 1 Stra. 505 would apply and would impose upon the solicitor the onus of satisfying the court that the plaintiff’s claim in the dismissed action would not have succeeded had it been prosecuted with diligence. This would be a heavy onus to sustain after so a great a lapse of time.’ and ‘The probabilities are that in any case in which the plaintiff had been advised to bring the action which had been dismissed and had never been advised to discontinue it, his subsequent action against his solicitor for negligence would be settled. One would hope that, for the good name of the profession, it would be settled promptly.’ As to the breach of the court rules the Court might strike out a claimant’s case where the breach ‘has been intentional and contumelious…’
The court set out the tests for striking out claims for want of prosecution. Lord Denning MR stated: ‘It was urged that we ought not to strike out a man’s action without trial because it meant depriving him of his right to come to the Queen’s Courts. Magna Carta was invoked against us as if we were in some way breaking its provisions. To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. ‘To no one will we deny or delay right or justice.’
All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage, hope. To put right this wrong, we will in this court, do all in our power to enforce expedition; and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent jurisdiction of the court. And the Rules of Court expressly permit it. It is the only effective sanction they contain. If a plaintiff fails within the specified time to deliver a statement of claim, or to take out a summons for directions, or to set down the action for trial, the defendant can apply for the action to be dismissed…’
Diplock LJ discussed a strike out: ‘It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default . . The power should be exercised only where the court is satisfied either: (i) that the default has been intentional and contumelious, e.g. disobedience to a pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or (ii) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and plaintiff or between each other or between them and a third party.’
Lord Diplock stated that: ‘But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay.’
A strike out for abuse of process might be available where there had been ‘inordinate and inexcusable delay such that there is a substantial risk that a fair trial of the issues in the litigation will not be possible’
The court should look also to the prejudice to the defendant from the delay: ‘And where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the courts been able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard’.
‘The underlying principle of civil litigation is that the court takes no action in it of its own motion but only on the application of one or other of the parties to the litigation, the assumption being that each will be regardful of his own interest and take whatever procedural steps are necessary to advance his cause.’
There is a need to ‘temper logic with humanity’.
An ‘amicus curiae’ is a person or organisation, not a party to the proceedings, who offers to assist a court or tribunal by providing representation to an unrepresented person or in some other way assisting by expounding the law impartially.
Salmon LJ explained the meaning of inordinate delay: ‘(1) . . It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.’

Judges:

Lord Denning MR, Diplock LJ, Salmon LJ

Citations:

[1968] 2 QB 229, [1968] 2 WLR 366, [1968] 1 All ER 543

Jurisdiction:

England and Wales

Citing:

Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .

Cited by:

Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Eagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
Cited – In re Jokai Tea Holdings Ltd CA 1989
An ‘unless order’ for the service of particulars of defence was a not obeyed but application was made to amend the defence involving the abandonment of the paragraphs of which particulars had been ordered.
Held: ‘it appears to me that there . .
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 . .
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.

Professional Negligence, Litigation Practice

Updated: 05 November 2022; Ref: scu.200642

Bayer v Harris Pharmaceuticals Ltd: 1991

A disclosing party does not have to provide a translation of documents in a foreign language.

Citations:

[1991 FSR 170

Jurisdiction:

England and Wales

Cited by:

Cited – Paddick v Associated Newspapers Ltd QBD 10-Dec-2003
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material.
Held: The application failed. The claimant had stated that the balance of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.211366

Jones v Andrews: 1888

Where a party to proceedings gives his list of documents supported by his oath, discovery is conclusive, Cotton LJ said that: ‘unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission by him in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state.’

Judges:

Cotton LJ

Citations:

(1888) 58 LT 601

Jurisdiction:

England and Wales

Cited by:

Cited – GE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
Cited – Paddick v Associated Newspapers Ltd QBD 10-Dec-2003
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material.
Held: The application failed. The claimant had stated that the balance of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.211365

In re Jokai Tea Holdings Ltd: CA 1989

An ‘unless order’ for the service of particulars of defence was a not obeyed but application was made to amend the defence involving the abandonment of the paragraphs of which particulars had been ordered.
Held: ‘it appears to me that there must be degrees of appropriate consequences even where the conduct of someone who has failed to comply with a penal order can properly described as contumacious or contumelious or in deliberate disregard of the order, just as there are degrees of appropriate punishments for a contempt of Court by breach of an undertaking or injunction. Albeit deliberate, one deliberate breach may in the circumstances warrant no more than a fine, whilst another may in the circumstances warrant imprisonment. In each case all the circumstances must be taken into account including the nature of the relief which is sought by the party in default. It is one thing for a plaintiff who has been struck out for want of prosecution to issue a writ claiming precisely the same relief the next day. It is quite another for a defendant to raise an arguable defence not previously before the Court and thus in no way associated with the penal order. It is plain on the authorities that albeit with caution, a defendant whose defence has been struck out for failure to comply with a penal order can in appropriate circumstances, be permitted to continue the very same defence of which particulars were ordered. It is in my view clear that, albeit there must still be caution, the position of a defendant who seeks only to rely on a defence which was not subject to the penal order particulars and to raise an arguable defence not previously raised is stronger. To shut out a new arguable defence would require more heinous conduct than would be required to justify a refusal to reinstate the very defence of which particulars had been ordered. In essence, the question in each case must be whether the punishment fits the crime.’ Sir John Magaw: ‘The conduct of the defendants, having regard to the circumstances, could not be described as ‘contumelious’. With all respect, it seems to me that the word ‘contumacious’ would be more apt than ‘contumelious’ in the passage in Lord Diplock’s discussion of the effect of the failure to comply with a peremptory order in Allen v Sir Alfred MacAlpine… . ‘Contumacy’ means ‘perverse and obstinate resistance of authority’. Surely it is that characteristic not ‘insolent reproach or abuse’ which is a frequent hallmark of a litigants failure to comply with a peremptory order?’.

Judges:

Lord Justice Parker, Sir John Magaw

Citations:

[1992] 1 WLR 1196, [1993] 1 All ER 630

Jurisdiction:

England and Wales

Citing:

Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .

Cited by:

Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.211361

ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust: CA 25 Jul 2003

The claimant sought damages alleging that she had been injured by the defendants’ negligence in conducting her birth. The parties sought determination of whether the court should restrict the number of expert witnesses.
Held: Nothing in the rules set a specific limit of one such witness. Where the question was substantial and complex, the overriding objective required the court to keep a balance between the parties. Inevitably the defence would include evidence from the doctors themselves, and the claimant was not to be limited too strictly.

Citations:

[2003] EWCA Civ 1284, Gazette 02-Oct-2003

Links:

Bailii

Statutes:

Civil Procedure Rules 35.1

Jurisdiction:

England and Wales

Professional Negligence, Litigation Practice, Civil Procedure Rules

Updated: 05 November 2022; Ref: scu.186539

Buxton and Another v Jefferies (A Firm): CA 4 Mar 1997

The defendant firm of solicitors acted for the plaintiffs when they purchased land. The registered title showed that part of the land which appear to be within their curtilage, was registered to the neighbours. A writ was issued to claim damages for professional negligence, but was delayed pending the outcome of a claim for the possession of the land. After losing that claim, their claim against the solicitors was struck out for the delay. They appealed that striking out. They denied the delay was unreasonable, and that the defendants had been prejudiced by the delay. In this case the delay was so substantial (ten years), that prejudice to the defendant’s ability to put their case was to be assumed.

Citations:

[1997] EWCA Civ 1146

Jurisdiction:

England and Wales

Professional Negligence, Litigation Practice

Updated: 05 November 2022; Ref: scu.141542

Symons v Cramb: CA 27 Feb 1997

The applicant was the widow of the former partner of the respondent. She claimed that his right to purchase her late husband’s share of the partnership was to be on payment for the goodwill. When a copy of the deed was produced, she challenged it in various actions, on various grounds, and also alleged negligence against the solicitors who drew it for failing to protect her interests. She claimed to have herself found a copy of the deed, which demonstrated fraud on the part of the defendant in obtaining the judgment in an earlier action. For various reasons, the court found the new copy deed to be not credible, and that it should not be admitted. Her appeal failed.

Judges:

Lord Justice Simon Morritt, Lord Justice Phillips

Citations:

[1997] EWCA Civ 1104

Jurisdiction:

England and Wales

Litigation Practice

Updated: 05 November 2022; Ref: scu.141500

Regina v Lord Chancellor and others ex parte Riniker: CA 28 Feb 1997

The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal is impossible because no English Court has jurisdiction to restrain publication of a judgment by injunction, and this Court has itself declined to order any stay such as might have prevented the publication of its judgment.’

Citations:

[1997] EWCA Civ 1127

Jurisdiction:

England and Wales

Citing:

See Also – Riniker v University College London EAT 5-Feb-1997
. .
Cited – George Bray v Ford HL 1896
The Court ordered a new trial on the ground of there having been a misdirection of the jury. . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .

Cited by:

See Also – Riniker v University College London CA 25-Nov-1998
. .
See Also – Riniker v University College London CA 31-Mar-1999
The writ office of the High Court unjustifiably rejected a writ which the plaintiff asked to be issued and did not issue it until the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be . .
See Also – Riniker v University College London EAT 23-Aug-1999
EAT Contract of Employment – Breach of Contract
EAT Contract of Employment – Breach of Contract. . .
See also – Riniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.141523

Whitehead v Avon County Council (2): CA 10 Feb 1997

The automatic directions timetable ceases to run on the stay of proceedings; a date was needed. Automatic directions were ousted if an order was made staying the action, even if it was likely that the stay would only be a temporary one. The rationale underlying the ouster of automatic directions was that the stay of an action, pending the examination of the plaintiff by a psychiatrist, was inconsistent with the continuance of automatic directions.

Citations:

Times 17-Mar-1997, [1997] EWCA Civ 976

Statutes:

County Court Rules 1981 17.2 17.11

Jurisdiction:

England and Wales

Citing:

See Also – Whitehead v Avon County Council (1) CA 3-May-1995
A personal injury claimant may not insist on a friend’s presence at an examination by the doctor instructed by defendants. . .

Cited by:

Cited – Cockeril v Tambrands Limited CA 21-May-1998
Even if a case is quite unsuitable for automatic directions, the plaintiff has an obligation to apply instead for specific manual directions to stand in their stead. It would be wrong to allow a plaintiff to escape from the discipline of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.141372

Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited: CA 13 Feb 1997

Executors may sue for a dependency claim despite a full and final settlement having been made by the deceased.

Citations:

Times 25-Feb-1997, [1997] EWCA Civ 1008

Jurisdiction:

England and Wales

Citing:

Appeal from – Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited 10-Mar-1995
The plaintiff claimed damages for mesothelioma. CEGB had provided a contractual indemnity in respect of damage or injury occurring before building works were taken over by a client in 1960. The question was whether a workman who died from . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Wills and Probate, Litigation Practice

Updated: 05 November 2022; Ref: scu.141404

Smith v Cosworth Casting Processes Limited: CA 26 Feb 1997

A right of appeal is not dependant upon an assessment of the chances of success on appeal. An appeal against the grant of leave to appeal should not anticipate the full appeal. There is a heavy onus on a respondent who seeks to set aside leave to appeal. Before applying, the respondent must bear in mind that the fact that the appeal has no realistic prospect of success does not necessarily mean that leave should not have been given. The applicant will be required to establish that there was no good reason for giving leave, which may not be the same thing.

Citations:

Gazette 12-Mar-1997, Times 28-Mar-1997, [1997] EWCA Civ 1099, [1997] PIQR P227, [1997] 1 WLR 1538

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 November 2022; Ref: scu.141495

Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper: CA 30 Jan 1997

The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the defendants. The defendant had been in default since 1984. The defendants said that the claim was in personalty only being under the assignment of the debt.
Held: There was a presumption that money recovered would be applied first in the repayment of interest. It was arguable that a 12 years’ limitation period under the general rule in Section 8 of the 1980 Act for actions on a specialty would not apply. Auld LJ said: ‘it is seriously arguable that when a mortgagee has re-possessed and has sold the security and is seeking to recover the shortfall, his claim is in simple contract whatever the nature of the instrument under which the debt was initially secured’.
As to the delay, the judge had considered the correct elements. The circumstances of a case, the issues and the length of delay, may entitle a court to infer that memories are likely to have become so dim as seriously to prejudice the case of a party and make continuation of the proceedings unfair. The defendant had suffered prejudice by the delay.

Judges:

Auld LJ

Citations:

[1997] EWCA Civ 882

Links:

Bailii

Statutes:

Limitation Act 1980 5 8 20(1)

Jurisdiction:

England and Wales

Citing:

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 . .
Cited – Barclays Bank v Miller CA 1990
In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave . .
Cited – National Westminster Bank Plc v Kitch CA 14-May-1996
An action to recover an overdraft debt which was secured by a mortgage is not itself a mortgage action. A claim based on a simple contract debt does not cease to be so simply because it is also secured by a charge. . .
Cited – Barnes v Glenton 1899
A contract debt had been then secured on land. The defendant pleaded limitation.
Held: The section, in not enlarging the period of recovery of a simple contract debt from 6 years to 12 years, was prohibitory and was enacted to limit existing . .
Cited – Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party) CA 1991
The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to . .
Cited – Shtun v Zaljejska CA 18-Apr-1996
Evidence of prejudice from inexcusable delay is to be examined carefully. It is not essential for a finding of prejudice in such a case that there should be evidence of the particular respects in which potential witnesses’ recollections have been . .

Cited by:

Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Litigation Practice

Updated: 05 November 2022; Ref: scu.141278

Berridge and Sons (Waste Products) Ltd and Berridge Incinerators Ltd v UK Waste Management Ltd: CA 22 Jan 1997

Application for leave to appeal.
Held: Granted: ‘This case raises the question of the principles to be applied when deciding whether to order that an action stand dismissed on the ground of failure to provide security for costs. That question has been considered at first instance in Speed Up Holdings Limited v Gough and Co Ltd (1986) Fleet Street Reports 330 but does not appear to have been considered by the Court of Appeal. It seems to us that the factors which may be relevant include (i) whether the limitation period has expired or when it is due to expire, (ii) the apparent merits of the claim, and (iii) whether it is demonstrated that there are, or conversely that there are not, potential sources from which that security may be provided.’

Citations:

[1997] EWCA Civ 816

Jurisdiction:

England and Wales

Litigation Practice

Updated: 05 November 2022; Ref: scu.141212

Camdex International Ltd v Bank of Zambia and Others (2): CA 28 Jan 1997

English Courts have no power to enforce foreign public law here.

Judges:

Simon Brown, Otton, Phillips LJJ

Citations:

Times 28-Jan-1997, [1997] EWCA Civ 798

Jurisdiction:

England and Wales

Citing:

See Also – Camdex International Ltd v Bank of Zambia and Another CA 3-Apr-1996
Appeal by the Defendant from a judgment on an application for summary judgment under RSC Order 14 by the Plaintiffs, Camdex International Ltd judgment was entered for the Plaintiffs in the sum of Kuwaiti Dinars 20,595,557.429. The Plaintiffs pleaded . .
See Also – Camdex International Ltd v Bank of Zambia and Another CA 22-May-1996
Application by the defendant for leave to appeal and, should leave be granted, an appeal . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 05 November 2022; Ref: scu.78857

Supreme Site Services and Others ((Judicial Cooperation In Civil Matters – Disputes Concerning The Enforcement of Judgments – Opinion): ECJ 2 Apr 2020

Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Scope – Article 1(1) – Concept of ‘civil and commercial matters’ – Provisional, including protective, measures – Proceedings to lift an interim garnishee order – Action brought by an international organisation – Acts and omissions in the exercise of State authority – Definition – Substantive proceedings seeking recognition of the existence of a contractual claim – Supply of fuel as part of a peacekeeping mission – Immunity from execution enjoyed by that international organisation

Citations:

C-186/19, [2020] EUECJ C-186/19_O, ECLI:EU:C:2020:252, [2020] EUECJ C-186/19

Links:

Bailii, Bailii

Jurisdiction:

European

Litigation Practice

Updated: 05 November 2022; Ref: scu.660155

Relfo Ltd v Varsani: ChD 27 Jul 2012

Claim brought by the Liquidator of the claimant company for recovery of monies belonging to the company which the Liquidator says were diverted by the former director and controller of the company, Mr Gorecia to the account of the Defendant, at Citibank Singapore Limited

Judges:

Sales J

Citations:

[2012] EWHC 2168 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 November 2022; Ref: scu.463301

Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 25 Jul 2012

The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes.
Held: It was an exceptional case, and the civil servants should be made available for cross-examination.

Judges:

Stanley Burnton LJ

Citations:

[2012] EWHC 2115 (Admin)

Links:

Bailii

Citing:

See Also – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
See Also – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
See Also – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
See Also – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
See Also – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .

Cited by:

Directions – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
Directions – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review

Updated: 04 November 2022; Ref: scu.463154

Henshall v Matthew: 29 Jan 1831

Judgment cannot be entered up after death of Plaintiff, on a warrant of attorney authorizing him to enter up judgment to secure the payment of 2001. to Plaintiff, his executors and assigns.

Citations:

[1831] EngR 408, (1831) 7 Bing 337, (1831) 131 ER 130 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 November 2022; Ref: scu.320286

Stallwood v David and Another: QBD 25 Oct 2006

The parties experts had met and agreed evidence, but the claimant’s expert later changed his mind. She now appealed being refused permission to bring additional evidence.
Held: The meeting of experts was to encourage them to seek agreement. The fact that an expert had changed his mind would not alone be sufficient to call additional evidence, but the rule did allow for further evidence in exceptional cases.

Judges:

Mr Justice Teare

Citations:

[2006] EWHC 2600 (QB), Times 27-Dec-2006, [2007] 1 All ER 206

Links:

Bailii

Statutes:

Civil Procedure Rules 35.12(1)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – In re Luna Metal Products Ltd (in Administration) CA 14-Dec-2006
The administrators held cash. They proposed a distribution giving creditors who would on a winding up be preferential, full preference. They appealed refusal by the court to sanction the proposal.
Held: The court had no power to make such an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 November 2022; Ref: scu.245959

Yui Tong Man v Mahmood and Another: CA 13 Dec 1996

Application for leave to appeal. The parties occupied adjoining premises under leases. The defendant sought to appeal an oder that he remove a refrigeration plant erected behind his premises, but on the roof of the other premises.
Held: There was no ambiguity as to the boundaries. The roof area was not let to the occupier of the first floor premises. Leave refused.

Judges:

Lord Justice Waite Lord Justice Schiemann

Citations:

[1996] EWCA Civ 1218

Jurisdiction:

England and Wales

Citing:

Cited – Wigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 04 November 2022; Ref: scu.195621

Guidance (McKenzie Friends): 2005

Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] 1 FLR 724, Milne v Kennedy and Others [1999] TLR 106, Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357). The litigant must apply at the outset of a hearing if he wishes the MF to be granted a right of audience or the right to conduct the litigation (Clarkson v Gilbert [2000] 2 FLR 839).’

Judges:

Sir Mark Potter P

Citations:

[2005] 35 Fam Law 405

Jurisdiction:

England and Wales

Citing:

Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .
Cited – Mensah v Islington Council and Another CA 1-Dec-2000
Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for . .
Cited – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Cited – In re D (A Child) CA 15-Mar-2005
Application to allow representation by a solicitor who was presently struck off the roll denied. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 04 November 2022; Ref: scu.227941

Savings and Investment Bank Ltd (In Liquidation) v Fincken: CA 14 Nov 2003

Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the perjury.
Held: The court had to balance the competing needs of fairness and expedition. There was nothing in the authorities (save Merrill Lynch) to support the judgment now appealed. It was a real question whether the shares at the centre of the controversy were disclosable in any event, and it was not clear that the without prejudice protection was being abused. The judge should not have been informed of the admission. The public interest in without prejudice discussion was not to be diminshed.
Rix LJ observed that the public interest in encouraging parties to speak frankly to one another in aid of reaching a settlement is very great and ought not to be sacrificed save in truly exceptional and needy circumstances: ‘It is of course distasteful for this or any court to avert its eye from an admission which, subject to any point about value, appears to incriminate Mr Fincken in lying in a sworn document. However, in the tension between two powerful public interests, it seems to me that that in favour of protection of the privilege of ‘without prejudice’ discussions holds sway – unless the privilege is itself abused in the occasion of its exercise.’

Judges:

Lord Justice Rix Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1630, Times 25-Nov-2003, Gazette 15-Jan-2004, [2004] 1 WLR 667, [2004] 1 All ER 1125

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Friedland CA 10-Nov-1992
The defendant admitted that he considered himself honour bound by an agreement, but said that if it came to litigation he would deny any legal obligation. On the facts, this was held to be ‘very far from blackmail’. As an exception to the rule that . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Followed – Berry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Hawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
Cited – Kitcat v Sharp 1882
The plaintiff clergyman had begun his action for rescission of a contract with the defendant for misrepresentattion. The defendant sent him a ‘private and confidential’ letter threatening publication of the pleadings with comments depreciating the . .
Cited – Merrill Lynch, Pierce Fenner and Smith Inc v Raffa 11-May-2000
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, . .
See Also – Savings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
See Also – Savings and Investment Bank Ltd (in Liquidation) v Fincken ChD 2-Mar-2001
The process of testing whether a new cause of action was proposed by an amendment of pleadings to bring into question application of the Limitation Acts, was conducted by asking at what level of abstraction was it claimed that there were one or two . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Cited – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Brodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 November 2022; Ref: scu.187787

Noueiri v Paragon Finance Plc (Practice Note): CA 19 Sep 2001

Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court and committing criminal offences. A McKenzie friend had no right to act as such, only the right to provide assistance, and that did not include any right to represent a party as an advocate. An order was granted banning Mr. Alexander from being involved in proceedings other than any on his own behalf.
Court Service Summary This summary does not form part of the judgment)

1. In this judgment the Court of Appeal has given its reasons for making an order banning Mr. Alexander from taking any steps whatever within the Royal Courts of Justice by way of acting or purporting to act on behalf of persons other than himself in legal proceedings except with the permission of a judge of the High Court or the Court of Appeal. The court also gave guidance about the activities of unqualified people who from time to time seek to help litigants in person in the courts. This ‘help’ may take the form of acting as an advocate in court on their behalf or of conducting litigation on their behalf. The exercise of both these rights is now controlled by the Courts and Legal Services Act 1990.

Advocacy services and rights of audience

2. The existence or otherwise of a right of audience is now determined exclusively by Part II of the Courts and Legal Services Act 1990 (‘the 1990 Act’) and particularly by section 27. If the ‘helper’ is not a barrister or a solicitor or a member of any other authorised body, and does not have rights granted by some statute, he may only have a right of audience in relation to any proceedings if ‘granted by that court in relation to those proceedings’.

3. Lord Woolf, when Master of the Rolls, has said that the discretion to grant rights of audience to individuals who did not meet the stringent requirements of the Act should only be exercised in exceptional circumstances. He added that the courts should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants.

McKenzie friends

4. Although this case was not concerned with McKenzie friends, the court also set out three principles relating to McKenzie friends. The first is that a McKenzie friend has no right to act as such: the only right is that of the litigant to have reasonable assistance. The second is that a McKenzie friend is not entitled to address the court. If he does so, he becomes an advocate and requires the grant of a right of audience. The third is that as a general rule a litigant in person who wishes to have a McKenzie friend should be allowed to do so, unless the judge is satisfied that fairness and the interests of justice do not so require. However, the court can prevent a McKenzie friend from continuing to act in that capacity where the assistance he gives impedes the efficient administration of justice.

The right to conduct litigation

5. The question whether a person has a right to conduct litigation is also determined solely in accordance with Part II of the 1990 Act. The ‘right to conduct litigation’ means the right to issue proceedings before any court, and the right to perform any ancillary functions in relation to proceedings (such as entering appearances to actions). The right to conduct litigation may be granted having regard to the same considerations as the grant of the right of audience. A court has the power to grant an otherwise unqualified person a right to conduct litigation in relation to particular proceedings. It also has the power to remove that right if it is being abused. It is a criminal offence and also a contempt of the court concerned to do any act in the purported exercise of a right to conduct litigation when none has been conferred.

The Solicitors Act

6. The court also referred to section 20(1) of the Solicitors Act 1974. This section provides that ‘no unqualified person shall act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction’. The section creates a criminal offence and also a contempt of the court in which the relevant action is brought. There is no breach and no contempt if the acts in question are carried out pursuant to a right of audience or a right to conduct litigation granted under the 1990 Act. In its judgment the court explains how the words ‘acts as a solicitor’ have been interpreted in the past.

Publicity for these principles

7. The Court expressed the wish that steps might be taken to bring these principles to the attention of everyone who exercises judicial office in the Royal Courts of Justice and every relevant member of court staff. It said that court staff should be particularly vigilant to ensure that formal documents, such as an appellant’s notice, should be signed either by the appellant himself or by someone, such as a solicitor, who has the legal right to conduct litigation on the appellant’s behalf. The court also expressed the hope that the appropriate authorities in the Supreme Court Group and the Civil Appeal Office might set up administrative systems to assist judges to identify those lay representatives who are not simply helping a friend or relation but are holding themselves out to act for others on a regular basis.

Judges:

Lord Justice Brooke, Lord Justice Laws, Lord Justice Tuckey

Citations:

Times 04-Oct-2001, Gazette 18-Oct-2001, [2001] EWCA Civ 1402, [2001] 1 WLR 2357, [2002] CP Rep 5, [2002] Fam Law 16, [2002] 1 Costs LR 12, [2001] NPC 138

Links:

Bailii

Statutes:

Solicitors Act 1974 20(1)

Jurisdiction:

England and Wales

Citing:

Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court. The friend’s conduct . .
Cited – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
See Also – Paragon Finance Plc v Noueiri CA 24-Apr-2001
Application for leave to appeal. . .
See Also – Paragon Finance Plc v Noueiri CA 4-Jul-2001
. .
Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .

Cited by:

Cited – Guidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Contempt of Court

Updated: 04 November 2022; Ref: scu.166185

Church of Jesus Christ Latter-Day Saints v West Yorkshire Fire and Civil Defence and John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and others and Digital Equipment Company Ltd v Hampshire County Council and Capital and Counties etc: CA 17 Dec 1996

The court made orders for the orderly hearing of the cases which raised interdependent issues.

Citations:

[1996] EWCA Civ 1227

Jurisdiction:

England and Wales

Citing:

See Also – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .

Cited by:

See Also – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .
See Also – Capital and Counties Plc v Hampshire County Council CA 14-Mar-1997
Consolidation of cases involving question of what duty was owed by a fire service to the owners of buildings.
Whether and if so in what circumstances a fire brigade owes a duty of care to the owner or occupier of premises which are damaged or . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 November 2022; Ref: scu.141095

Vernon v Bosley (3): CA 19 Dec 1996

The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used in the children proceedings suggesting an improvement in his condition had not been disclosed to the court awarding the damages. This had been on counsel’s advice.
Held: The judge must be told of a change in the Plaintiff’s prognosis which had occurred after the medical evidence had been given. The court had a remaining discretion to admit such evidence. Counsel had a professional duty to make further disclosure where there was a risk that the court might be misled.
‘where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto.’ and ‘Where there is a danger that the court will be misled, it is the duty of counsel to advise his client that disclosure should be made. There is no reason to suppose that if Mr Vernon had been so advised in this case, he would not have accepted that advice. If the client refuses to accept the advice, then it is not as a rule for counsel to make the disclosure himself; but he can no longer continue to act.’

Judges:

Stuart-Smith LJ, Thorpe LJ, Evans LJ dissenting

Citations:

Times 19-Dec-1996, Gazette 29-Jan-1997, [1998] 1 FLR 304, [1996] EWCA Civ 1217, [1997] 3 WLR 683, [1997] RTR 275, (1997) 35 BMLR 174, [1999] QB 18, [1997] 1 All ER 614, [1997] Fam Law 476, [1997] PIQR P326

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Vernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
See Also – Vernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .
See Also – Vernon v Bosley QBD 5-Aug-1994
The Judge may impose a schedule for the examination of witnesses if there is a severe overrun of the case at the hearing. . .
See Also – Vernon v Bosley (1) CA 8-Apr-1994
Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The . .
Cited – Tombling v Universal Bulb Co CA 1951
Denning LJ said: ‘The duty of counsel to his client in a civil case – or in defending an accused person – is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, . .
Cited – Mulholland v Mitchell HL 1971
The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh . .
Cited – Blamire v South Cumbria Health Authority CA 1993
When assessing damages for losses arising through professional negligence by a school, the court arrived at a lump sum representing the loss of the opportunity to gain employment at the end of a successful period of education. The onus of proving . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 04 November 2022; Ref: scu.90152

Nelson v Nelson: CA 6 Dec 1996

A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a bankrupt. A bankrupt has power to instruct solicitor to commence proceedings. Waller LJ
Gibson LJ said: ‘s.306 of the Insolvency Act 1986 . . vested in the trustee in bankruptcy property such as the bankrupt’s claimed interest in [the subject matter of that claim] on the bankruptcy . . the question to be answered is whether the bankrupt had capacity to retain a solicitor to commence the proceedings which he did commence. These proceedings are not a nullity such as would have been the case if the plaintiff did not exist. But they were liable to be stayed or struck out because the bankrupt did not have any interest in the property, such interest as he did have prior to the bankruptcy order having vested in the trustee in bankruptcy. They might be stayed pending the decision of the trustee in bankruptcy to take over the proceedings. Alternatively, if the trustee did not wish to do so, a defendant could apply to strike out the action’.
Waller LJ said: ‘if the solicitor commences an action for a bankrupt in relation to a cause of action which is vested in the bankrupt’s trustee, there will on most occasions be negligence bringing into play the jurisdiction which does not depend on an analogy with breach of warranty of authority’.

Judges:

Gibson LJ, Waller LJ

Citations:

Gazette 15-Jan-1997, Times 08-Jan-1997, [1996] EWCA Civ 1140, [1997] 1 WLR 233, [1997] 1 All ER 979

Links:

Bailii

Statutes:

Insolvency Act 1986 306

Jurisdiction:

England and Wales

Citing:

Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .

Cited by:

Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Cited – Pickthall and Another v Hill Dickinson Llp CA 11-Jun-2009
The court was asked as to the extent to which it is an abuse of the process for a claimant to commence proceedings without having the relevant cause of action vested in him, and whether it would be right to allow him to amend his pleadings to plead . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Insolvency, Litigation Practice

Updated: 04 November 2022; Ref: scu.141008

Dowse v Kappell: CA 12 Dec 1996

The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it was a proper case to hold that the two threshold tests had been satisfied.

Citations:

[1996] EWCA Civ 1201

Statutes:

County Court Rules l981 Order 17 rule 11

Jurisdiction:

England and Wales

Citing:

Cited – Hoskins v Wiggins Teape (UK) Limited CA 1994
The plaintiff had delayed the action. It had been transferred from the High Court in July 1991, and was then automatically struck out. The plaintiff sought re-instatement.
Held: The court attempted to put into proper context the problems that . .
Cited – Rastin v British Steel Plc, Todd v Evans, Adams v Geest Plc CA 18-Feb-1994
An action which had been automatically struck out, may be re-instated if there had been good cause for the delay. ‘The proper approach to the exercise of any judicial discretion must be governed by the legal context in which the discretion arises.’ . .
Cited – Reville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
Cited – Gardner v Southwark London Borough Counci (No 1); King v East Cambridgeshire District Council etc CA 18-Jan-1996
It was not an abuse of process, to restart a claim within the limitation period after an automatic striking out of an earlier action. Millett LJ referred to the ‘same dilatory progress’ all the parties to the action continued to make after the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 November 2022; Ref: scu.141069

Kawarindrasingh v White: CA 13 Dec 1996

A judge who was reviewing the taxation of a litigant in person’s bill of costs, has the powers of taxing officer. He was not limited to changing the taxing officer’s decision if it was Wednesbury unreasonable. He had his own discretion.

Citations:

Times 19-Dec-1996, Gazette 13-Dec-1996

Jurisdiction:

England and Wales

Costs, Litigation Practice

Updated: 04 November 2022; Ref: scu.82688

In re L and B (Children): CA 18 Jul 2012

In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later delivered a judgment which differed substantially. The parties complained that the judge had not explained the change .
Held: The judge had been bound by her findings. However the judgment delivered did not differ to such an extent as to amount to a breach.

Judges:

Thorpe, Rimer LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 984, [2012] WLR(D) 240

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re A and L (Children) (Judgment: Adequacy of Reasoning) (Practice Note) CA 27-Oct-2011
The mother appealed against a factual findings made in the course of care proceedings as to her involvement in sexual abuse of the children.
Held: The court gave guidance as to the reconsideration of a court’s decision. Munby LJ said: ‘it is . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Cited by:

Appeal from – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 03 November 2022; Ref: scu.462949

Elnagy International Ltd and Others v Revenue and Customs: FTTTx 2 Apr 2012

Procedure – application for permission to appeal out of time – alleged negligence of former adviser – jurisdiction – approach to exercise of Tribunal’s discretion – all circumstances taken into account, including whether appellants have an arguable case and the merits of that case, and the reasons for the failure to appeal in time – application allowed in part, on terms

Citations:

[2012] UKFTT 269 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes – Other, Litigation Practice

Updated: 03 November 2022; Ref: scu.462664

Citi-March Ltd v Neptune Orient Lines Ltd: 1996

Colman J regarded separate trials in England and Singapore as not only inconvenient but also a potential source of injustice and made an order intended to achieve a composite trial in London despite a Singaporean exclusive jurisdiction clause

Judges:

Colman J

Citations:

[1996] 1 WLR 1367, [1996] 2 All ER 545

Jurisdiction:

England and Wales

Cited by:

Cited – Donohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 November 2022; Ref: scu.181224

Scammell and Others v Dicker: CA 21 Dec 2000

A part 36 offer can be withdrawn at any time before it is accepted or expires. The rules can not force an offer to be left open. Clear words would have been required within the rules to impose such an obligation. The actual words referred to offers ‘expressed’ to be open for 21 days, but the intention was to create an ‘unless’ condition not a positive obligation. Such offers are subject to the general rules of contract, including offer and acceptance and the rules merely provide an advantage to the parties in dealing with each other. A court will strive to give effect to agreements, unless not intended to create legal relations, particularly when the agreement is a compromise of an existing dispute and when it has been acted on.

Judges:

Lord Justice Aldous And Lord Justice Mance

Citations:

Gazette 15-Feb-2001, Times 14-Feb-2001, [2000] EWCA Civ 352, [2001] CP Rep 64, [2001] CPLR 188, [2001] 1 WLR 631

Links:

Bailii

Statutes:

Civil Procedure Rules Part 36

Jurisdiction:

England and Wales

Citing:

See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appeal from – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .

Cited by:

Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appealed to – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 03 November 2022; Ref: scu.147385

Perry v Wong: CA 25 Nov 1996

A request for a trial after the six month limit, but within the fifteen month limit, was valid without a prior application for extension of time, despite the automatic directions provisions.

Citations:

Gazette 13-Dec-1996, Times 09-Dec-1996, [1996] EWCA Civ 1031, [1997] PIQR P66, [1997] 1 WLR 381

Links:

Bailii

Statutes:

County Court Rules 1981 O 17 r 11(3)(d)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 03 November 2022; Ref: scu.140898

Trustee of Property of Andrews v Brock Buildings (Kessingland) Limited: CA 21 Nov 1996

An impecunious plaintiff who resisted an application to stay proceedings in order to allow an arbitration can be required to show the cause of his inability to fund the action.

Judges:

Master of the Rolls, Aldous and Brooke LJJ

Citations:

Gazette 05-Feb-1997, Times 09-Dec-1996, [1996] EWCA Civ 1023, [1997] QB 674

Links:

Bailii

Statutes:

Arbitration Act 1950 4

Jurisdiction:

England and Wales

Citing:

Cited – Fakes v Taylor Woodrow Construction Limited 1973
The plaintiff resisted an application for a stay of his action for an arbitration on the basis that his lack of funds would make it impossible to take part in an arbitration. . .

Cited by:

Cited – Malekout v Medical Sickness Annuity and Life Assurance Society Limited CA 21-May-1998
The plaintiff sought to appeal against a stay of his action so that it could be referred to arbitration. His claim was under insurance policies containing clauses providing for arbitration of disputes.
Held: The judge had failed to take . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 03 November 2022; Ref: scu.140890

Paragon Finance Plc (Formerly National Home Loans Corporation Plc) v Hare and Others: ChD 1 Apr 1999

Where a party wished to allege a conspiracy to defraud, he must set out the facts and circumstances leading to that inference clearly in his pleadings. It was not open to him, having failed to do so, to assert an alternative claim on the same pleadings.

Citations:

Times 01-Apr-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 03 November 2022; Ref: scu.84563

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.

Citations:

Times 27-Dec-1996, Gazette 22-Jan-1997, [1996] EWCA Civ 1039

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 November 2022; Ref: scu.83865

JSC BTA Bank v Ablyazov and Others: ComC 4 Jul 2012

The bank had obtained a freezing order. The defendants had claimed four substantial loan agreements, but the Bank asserted that these were shams. The first defendant had been found guilty of contempt, and now seemed to have fled the country.

Judges:

Christopher Clarke J

Citations:

[2012] EWHC 1819 (Comm), [2012] 2 CLC 641, [2012] 2 All ER (Comm) 1243

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – JSC BTA Bank v Ablyazov CA 25-Jul-2013
The claimant bank had an asset freezing order in place over the assets of the defendant. The defendant had in place loan facilities allowing him to draw down substantial amounts as chosen. The claimant appealed from refusal of a declaration that the . .
At first instance – 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, Banking

Updated: 03 November 2022; Ref: scu.461920

Ted Baker Plc and Others v Axa Insurance Uk Plc and Others: ComC 29 Jun 2012

The court had determined several preliminary issues in favour of the claimants, but issues as to liability remained. The court considered whether and on what basis it was proper now to make an order for costs.
Held: Eder J said: ‘As to the scope and effect of CPR Part 36.13 it seems to me that two points are relatively clear. First, the prohibition in CPR Part 31.13 (2) applies only to a Part 36 offer. It follows that an offer which is not a Part 36 offer is not caught by the prohibition. I did not understand the parties to suggest otherwise although I should mention that there was some debate during the hearing whether a party who had made an offer of settlement ‘without prejudice save as to costs’ which was not a CPR Part 36 offer could at any stage unilaterally waive the privilege that would ordinarily attach to such offer and voluntarily communicate both the fact and terms of such offer to the court. In principle, I see no reason why that should not be so. However, it is unnecessary to resolve that debate in the present case because it was not suggested by either the defendants or the claimants that any offer that might have been made was of such a type.
Second, although CPR Part 36.13 (2) prohibits the fact of any CPR Part 36 offer being communicated to the court in the circumstances there specified, it does not on its language appear to prohibit the fact that a CPR Part 36 offer has not been made being communicated to the court. Again, I did not understand the parties to suggest otherwise although this may seem somewhat odd if only because if that is right and the court is not told that a CPR Part 36 has not been made then the inference would seem to be that a CPR Part 36 offer must have been made; and this would appear to undermine the prohibition in CPR Part 36.13. Be that as it may, Mr Cogley QC informed the court (without objection from Mr Nicholson QC) that the court could and should proceed on the basis that no CPR Part 36 offer has been made specifically in relation to the preliminary issues.
In any event, I am still ignorant as to whether any more general CPR Part 36 offer has been made. What is the proper approach in such circumstances?
It seems to me (as it did to Henderson J. in AB v CD) that there is a ‘real problem’ here. In my view, there is an urgent need for CPR 36.13 to be reviewed and possibly reformulated in order to deal in particular with the question of ‘split trials’ and the kind of difficulties which have arisen in the present case. However, in the meantime I have to grapple with the rule in its present form. The view tentatively expressed by Henderson J. was that in appropriate circumstances the new wording should be construed as referring to the conclusion of the first part of a split trial so that once that part has ended, it would be permissible to communicate the fact of any Part 36 offer to the court. That interpretation of CPR Part 36.13 (2) has obvious attractions and one which is, I suppose, an interpretation consistent, or at least more consistent, with the overriding objective.
Such an approach was urged by Mr Nicholson QC. In particular, he submitted that it cannot have been the intention of the Rules Committee when recasting the old Rule 36.19 to narrow the circumstances in which the fact of a CPR Part 36 offer has been made; and indeed it was his submission that the intention was to the contrary i.e. to widen such circumstances. Thus, Mr Nicholson QC submitted that in a case such as the present i.e. when the court determines only some preliminary issues and the issue of liability generally is yet to be determined, the fact of any CPR Part 36 offer could not have been communicated to the court under the former Rule 36.19 because none of the exceptions in the then subparagraph 3 (c) would apply. In particular, subparagraph 3(c)(i) on its face only applied when the ‘issue of liability’ had been determined and ex hypothesi such liability has not yet been determined.
Mr Nicholson QC submitted that one of the reasons for the change of wording in the new CPR Part 36.13 must have been to deal with that situation and, in effect, to permit the fact of any CPR Part 36 offer to be communicated to the court after the determination of some preliminary issues but before the determination of liability generally. In particular, he submitted that the words ‘until the case has been decided’ in the present CPR Part 36.13(2) are different from and much less specific than the wording of the old Rule 36.19(2) (‘until all questions of liability and the amount of money to be awarded have been decided’) – a point which obviously impressed Henderson J. However, for my part, it seems to me that the interpretation which Henderson J. tentatively suggested and urged here by Mr Nicholson would stretch the present wording beyond its proper limit.
In the event, it seems to me unnecessary to decide this issue i.e. the scope and effect of CPR Part 36.13 (2) and I propose to proceed on the assumption in favour of the claimants that the prohibition applies in the present case.’

Judges:

Eder J

Citations:

[2012] EWHC 1779 (Comm)

Links:

Bailii

Cited by:

Cited – Beasley v Alexander QBD 9-Oct-2012
The parties had disputed liability for personal injuries in a road traffic accident. The court had held the defendant liable, but held over the assessment of damages. The defendant sought to refer to the fact of his offer of settlement when . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 November 2022; Ref: scu.461820

Hurley v The Darjan Estate Company Plc: ChD 10 Feb 2012

H appealed against an order made for his bankruptcy on an application by DJ.

Judges:

Geraldine Andrews QC

Citations:

[2012] Ewhc 189 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 03 November 2022; Ref: scu.461755

Syed, Regina (on The Application of) v Secretary of State for The Home Department: CA 7 Sep 2011

The court considered appeals where relevant information had come to light too late within proceedings to be taken account of save on appeal.

Judges:

Sir Anthony May P, Thomas, Elias LJJ

Citations:

[2011] EWCA Civ 1059

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Litigation Practice

Updated: 01 November 2022; Ref: scu.443632

Re NP Engineering and Security Products Ltd; Official Receiver and Another v Pafundo and Another: CA 22 Oct 1996

The official receiver began director disqualification proceedings, but before the proceedings commenced, the company was wound up. Where, on an application for the disqualification of a director, the official receiver and the Secretary of State became aware that the company had in fact already been dissolved, the normal course would be to transfer the proceedings from the County Court to the High Court and to substitute the Secretary of State as applicant in the place of the official receiver.
The court gave guidance on the application of section 42(1)(b) of the 1984 Act, saying: ‘provided proceedings are started within the time permitted by the statute of limitations, are not frivolous, vexatious or an abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers . . No injustice is involved to the defendant in transferring an action which has been started in the wrong court to the correct court.’

Judges:

Simon Brown, Waite, Morritt LJ

Citations:

[1996] EWCA Civ 782, [1998] 1 BCLC 208

Statutes:

County Courts Act 1984 40 42(1)(b), Company Directors Disqualification Act 1986 6, Insolvency Act 1986 205(2)

Jurisdiction:

England and Wales

Citing:

Cited – In Re the Working Project Ltd; In Re Fosterdown Ltd and Others ChD 27-Oct-1994
Company disqualification proceedings may conclude in the county court after a winding up of the company in that court. The power to disqualify directors survives the finishing of the winding up of the company, even though the Official Receiver had . .

Cited by:

Cited – Schmidt v Wong CA 7-Dec-2005
The claimant began a personal injury claim against her landlord. She wanted a freezing order, but began her claim in the County court. When she became aware that the county court had no jurisdiction to grant such an order, he sought to have the . .
Cited – Howarth v Gwent Constabulary and Another QBD 1-Nov-2011
The claimant alleged malicious prosecution and misfeasance in public office against the defendant. He had been charged with perverting the course of justice. He had worked for a firm of solicitors specialising in defending road traffic prosecutions. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Insolvency

Updated: 01 November 2022; Ref: scu.237553

Robertson v Banham and Co (a Firm): CA 31 Oct 1996

The service of a writ on a professional person at his last known business address was proper.

Citations:

Gazette 05-Feb-1997, Gazette 29-Jan-1997, Gazette 22-Jan-1997, Times 26-Nov-1996, [1996] EWCA Civ 860, [1997] 1 WLR 446

Links:

Bailii

Statutes:

Rules of the Supreme Court 10 1(2)(b) 83(3), County Court Rules 1981 3(1)(a)

Jurisdiction:

England and Wales

Litigation Practice, Company

Updated: 01 November 2022; Ref: scu.140727

British Diabetic Association v Diabetic Society; Bennett and Atkin: CA 31 Oct 1996

The plaintiffs sought damages. Alleging passing off by the defendants. An injunction had been granted, and the appellants now sought to appeal release from that injunction. An order for costs estimated at andpound;350,000 had been made.
Held: Leave to appeal would be granted only on the appellants giving security for costs in the sum of andpound;40,000. They were impecunious and should not be denied an opportunity to appeal even though the chances of success on appeal were slim.

Judges:

Lord Justice Phillips

Citations:

[1996] EWCA Civ 839

Jurisdiction:

England and Wales

Charity, Costs, Litigation Practice

Updated: 01 November 2022; Ref: scu.140706

Regina, ex parte London Borough of Hackney v Mullen: CA 18 Oct 1996

The authority appealed a fine of pounds 5,000 for a breach of an undertaking to carry out repairs to their tenant’s property. They complained that there had been no evidence of previous breaches, and that the judge had been wrong to take account of other breaches.
Held: The authority might have applied for an adjournment, anticipating the order to be made. It had not. The judge was exercising a proper discretion, was entitled to take account of other breaches, and also to use his own special knowledge of the respondent’s behaviour in other cases. An affidavit from the authority that it had only broken one such order in the previous twelve months was not to the point.

Citations:

[1996] EWCA Civ 767

Jurisdiction:

England and Wales

Housing, Litigation Practice

Updated: 01 November 2022; Ref: scu.140634

McDonald’s Corporation and Another v Steel and Morris: CA 17 Oct 1996

A trial judge’s decisions should not normally be set aside unless they constituted a denial of justice to one or other of the parties.

Citations:

Times 22-Nov-1996, [1996] EWCA Civ 755

Jurisdiction:

England and Wales

Citing:

See Also – McDonald’s Corporation v Steel and Another CA 14-Apr-1994
Defence paragraphs alleging justification were to be struck out only in the clearest of cases. One should only plead justification if one has reasonable evidence to support the defence or reasonable grounds for supposing that sufficient evidence . .
See Also – McDonald’s Corporation, McDonald’s Restaurants Limited v Helen Marie Steel, David Morris QBD 19-Jun-1997
(Summary of judgment) . .

Cited by:

See Also – McDonald’s Corporation, McDonald’s Restaurants Limited v Helen Marie Steel, David Morris QBD 19-Jun-1997
(Summary of judgment) . .
Cited – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation

Updated: 01 November 2022; Ref: scu.140622

Sir Henry Royce Memorial Foundation v Hardy: ChD 1 Apr 2021

Judges:

HHJ Paul Matthews

Citations:

[2021] EWHC 817 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 117

Jurisdiction:

England and Wales

Citing:

See Also – Sir Henry Royce Memorial Foundation v Hardy ChD 26-Mar-2021
Claim under CPR Part 8 between a company limited by guarantee and registered charity (the claimant) and one of its members (the defendant), for orders under section 117 of the Companies Act 2006, relating to a request made by the defendant of the . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 01 November 2022; Ref: scu.660803

Re L (Psychologist – Duty To The Court): FD 20 Dec 2011

The court had made findings of non-accidental injury caused by the parents. A psychologist called in to assist the court was sympathetic to the parents invited the court to reconsider its findings of fact.
Held: The expert had gone beyond her remit and also, on other elements outside her area of expertise. It would be unsafe to rely on her report. The mother’s continuing denial made any risk assessment difficult, and it was not possible to consider that she was other than a risk to her children. Determined and persistent efforts had been made to obstruct court orders. The court made orders appropriate to its findings.

Judges:

Bellamy J

Citations:

[2011] EWHC B29 (Fam)

Links:

Bailii

Statutes:

Family Procedure Rules 2010 25.3, Children Act 1989 1

Jurisdiction:

England and Wales

Citing:

Cited – In re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .
Cited – In re B (A Child) SC 19-Nov-2009
The Court considered a decision granting to a father the care of his child who appeared to have become happily settled with the maternal grandmother.
Held: The grandmother’s appeal succeeded. The judge and court of appeal had misunderstood the . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 01 November 2022; Ref: scu.460537

Coles and Others v Hetherton and Others: ComC 15 Jun 2012

Judges:

Cooke J

Citations:

[2012] EWHC 1599 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Coles and Others v Hetherton and Others ComC 22-Sep-2011
Parties challenged the method used by the Royal and Sun Alliance insurance to calculate the cost of repairs to motor vehicles damaged in accidents. After conflicting decisions in County Courts, the issue was brought before the Commercial Court.

Cited by:

Appeal from – Coles and Others v Hetherton and Others CA 20-Dec-2013
The claimants’ insurers disputed arrangements by the defendants’ insurers in motor accident claims which, they said artificially inflated the costs of repairs to the profit of the defendants’ insurers. . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Litigation Practice

Updated: 01 November 2022; Ref: scu.460509

Smith v ADVFN Plc and Others: CA 30 Jul 2009

Application for leave to appeal

Judges:

Hooper LJ

Citations:

[2009] EWCA Civ 826

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Smith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
See Also – Smith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
See Also – Smith v ADVFN Plc CA 15-Apr-2008
The claimant complained of defamation on internet bulletin boards. He made an application to require the forum operator to disclose IP addresses and other information about posters under a Norwich Pharmacal order. Further applications were made for . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 01 November 2022; Ref: scu.460493

Wong v Beaumont Property Trust Ltd: CA 12 Mar 1964

A basement had been let to the plaintiff for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the plaintiff to install a proper system for taking away the smells, which would have to go through the landlord’s property.
Held: The County Court had jurisdiction to hear such a claim on the basis assumed that the rateable value of each property was within the limits. An easement of necessity had been shown under the rule in Pwllbach.

Judges:

Lord Denning MR, Pearson LJ, Salmon LJ

Citations:

[1965] 1 QB 173, [1964] 2 WLR 1325, [1964] 2 All ER 119, (1964) 108 SJ 237, [1964] EWCA Civ 4

Links:

Bailii

Statutes:

Food Hygiene (General) Regulations 1960 (SI 1960 601), County Court (Jurisdiction) Act 1963 1, County Courts Act 1959 51

Jurisdiction:

England and Wales

Citing:

Applied – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 31 October 2022; Ref: scu.223975

Bank of Baroda v Rafique and Another: CA 15 Oct 1996

The defendant sought as an alternative to an order for possession, an order for the sale of the property pending resolution of the issue of her claim of undue influence.
Held: The case was remitted to the county court to reconsider an order for sale, and with a request that the balance of isues be determined quickly.

Citations:

[1998] Fam Law 138, [1996] EWCA Civ 722, (1998) 30 HLR 845, [1998] 1 FCR 489, [1998] 1 FLR 524, [1997] NPC 457

Links:

Bailii

Jurisdiction:

England and Wales

Undue Influence, Litigation Practice

Updated: 31 October 2022; Ref: scu.140589

De Bretton v Hampshire County Council: CA 9 Oct 1996

The claimant sought damages after a car skidded on the road, and she was injured. She said the respondent was in breach of their statutory duty in having failed to clear the road. The authority said it had taken the appropriate steps to clear up the spillage, and that the accident was a result of the claimant driving too quickly. An employee of the respondent had spread the sand, but also had materials for the clearing up of oil which he had not used. This came up only after he had completed his evidence. The respondent objected to thie admission of this evidence, and then asked the judge to recuse herself. She had ordered a retrial.
Held: there had been no impropriety. The case was remitted to the same judge for the hearing to be completed.

Citations:

[1996] EWCA Civ 688

Statutes:

Highways Act 1980

Jurisdiction:

England and Wales

Torts – Other, Road Traffic, Litigation Practice

Updated: 31 October 2022; Ref: scu.140555