The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an undertaking the court should ask: ‘whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made.’
Potter LJ: ‘It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and ‘must be made in an unequivocal manner and must not run counter to any important public interest’, Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications ‘neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public’ (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case.’
A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences: ‘It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36.’
Lord Justice Laws Lord Justice Potter Lady Justice Arden
[2003] EWCA Civ 1863, Times 29-Jan-2004, [2004] 1 WLR 1605
Bailii
England and Wales
Citing:
Cited – Eronat v Tabbah CA 10-Jul-2002
. .
Mentioned – Re Hudson, Hudson v Hudson ChD 1966
The plaintiff’s marriage had been dissolved and her former husband was ordered to pay her maintenance at a specified rate. The husband subsequently filed evidence that he was unable to comply with that order but offered to undertake to pay one-third . .
Cited – Miller and Another v Scorey and Others ChD 2-Apr-1996
Using disclosed documents in second action with similar parties may be a contempt, depending significantly upon whether any undertaking, express or implied was given. The court struck out an action where proceedings were commenced in reliance on . .
Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Cited – Woodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
Cited – Eronat v Tabbah CA 10-Jul-2002
. .
Cited – Purcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
Cited – Siebe Gorman and Co Ltd v Pineupac Ltd 1982
The court should be expected to be reluctant to relieve a party of the consequences of a consent order. . .
Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
Cited – Dermot Gerard Richard Walsh v Andre Martin Misseldine CA 29-Feb-2000
The claimant sought damages for injuries from 1989. His claim was pursued effectively, but a four-year delay ensued after 1994. He then sought to enlarge his claim greatly by introducing a lot of new issues of which the defendant’s insurers had no . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Hakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Purdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .
Cited by:
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Cited – Warren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
Cited – Barron and Others v Collins MEP QBD 22-Dec-2016
The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Leading Case
Updated: 11 November 2021; Ref: scu.188901