Gilbert v Endean: CA 1878

The plaintiff had obtained an order against a defendant for the defendant to give a bond for payment of money to the plaintiff and to deposit some shares as security for compliance. Subsequently, the plaintiff entered into a compromise with the defendant by which the plaintiff agreed to accept payment of a smaller sum. However, the plaintiff later sought to proceed under the initial order on the basis that the compromise was reached because the defendant had concealed a material fact, that is, the defendant’s father had died during the negotiations for the compromise whereas the plaintiff had been led to believe that the father was alive and would not help the defendant. In other words, the defendant was not in the penniless state that he had led the plaintiff to believe. The court at first instance allowed the plaintiff to enforce the initial order A failure to object to the reception of evidence at the time when it is tendered ordinarily amounts, of course, to a waiver of objections.
Cotton LJ said that: ‘those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.’


Cotton LJ


(1878) 9 Ch D 259

Cited by:

CitedHayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.545143