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Litigation Practice - From: 1960 To: 1969

This page lists 92 cases, and was prepared on 02 April 2018.

 
In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co [1961] AC 1007; [1960] 2 WLR 969; [1960] 2 All ER 332
1960
HL
Lord Denning
International, Litigation Practice
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania. Held: The sum provable in the liquidation of the company was to be converted at the rates of exchange prevailing at the respective dates when the several sums arising by the company to the creditor fell due and payable. Although the substantive debt was a US dollar debt, English procedural law dictated (a) that it must be converted into English pounds for the purposes of converting it into a debt provable in an English liquidation and (b) the date at which each debt should be converted into English currency.
Lord Denning said: “if there is one thing clear in our law, it is that the claim must be made in sterling and the judgment given in sterling"
1 Cites

1 Citers


 
In re Moritz [1960] Ch 251
1960
CA
Wynn-Parry LJ
Trusts, Costs, Litigation Practice
Trustees had denied the defendants a sight of the exhibits to affidavits. Their' counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should not necessarily see all the evidence relating to the dispute. Counsel for the proposed beneficiary defendants, argued that he should be entitled to attend argue for his clients, on all matters including ones based on the so-far denied exhibits, and that it was for the Judge to say if those arguments were heard in the presence of parties other than the trustees who sought the directions of the court, though where one was considering beneficiaries and where their trust estate might bear the expense of the proposed litigation, it was beneficiaries' money that was being spent or being proposed to be spent. Held: Wynn-Parry J said: "Speaking for myself, so far as I know, it has been the practice of this court, without exception, over a great many years, that where, in such a case as this, application is made by a trustee ex necessis where there are disputes, for directions from the court as to whether or not proceedings should be brought against the defendants, those defendants are not entitled to be heard upon that application. The court acts upon such evidence as is placed before it and it expresses itself one way or the other." and
"As I understand it, the practice in this Division is that where a trustee finds it is compelled to ask for the directions of the court as to whether or not certain proceedings should be taken, while it is proper and indeed necessary to join the parties against whom the proposed relief is sought, those parties should not be present in Chambers when the matter is debated; and they should not be furnished with the evidence upon which the court is asked to act… Very frequently, the leave to proceed is limited, for instance, up to discovery, but it would seem to me to be a quite unjustified inroad upon what I conceive to be a very useful practice if I were to allow this application and to allow the two defendants not merely to be present at the beginning of the proceedings when the originating summons is heard, but to remain there throughout those proceedings and to have all the evidence on which the trustees are asking the court for its directions. I know of no precedent for it, and, in my view, it is completely against the established practice."
1 Cites

1 Citers


 
Attorney General v Vernazza [1960] AC 965; [1960] 1 QB 197; [1960] 3 All ER 97
1960
HL
Viscount Simonds, Lord Denning
Litigation Practice
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order and the hearing of the appeal the Act was amended to allow orders to be made prohibiting the institution or continuation of proceedings. On the hearing of the appeal the respondent, the Attorney-General, sought an order that Vernazza be prevented from continuing proceedings as well as instituting them. Held: The further order was made. The statute book contains many statutes which are not retroactive but alter existing rights and duties - only prospectively, with effect from the date of commencement. Such provisions should not be described as "retrospective".
Statutory provisions dealing with procedural matters will generally be construed so as to apply to proceedings of which the Court was seized at the time the provision came into effect.
Lord Denning said: "It is, of course, clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings . . But it is different when the statute is retrospective either because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance, see Quilter v Mapleson . ."
Viscount Simonds said: "By the amending Act a new power was given to the court to enable it to deal with proceedings of which it was seised. The object was both to prevent an abuse of its process and to relieve possible victims of vexatious litigation. I would respectfully doubt whether this could in any view be strictly called retrospective legislation, but, if it has this characteristic . . it is of a procedural nature and . . amply covered by . . authority . .
the Court of Appeal, being entitled and bound to apply the law in force at the time of the appeal, was enabled, if it thought fit, to accede to the application of the Attorney-General . . the Court of Appeal could and should have varied the order of the High Court by adding thereto the order that any legal proceedings instituted by the respondent . . before the making of that order 'shall not be continued . .'"
Lord Morris said: "it has to be considered what order ought to have been made by the . . Court if the matter had come before them on . . (the date of the rehearing in the Court of Appeal). I entertain little doubt that the . . Court would . . have made an order in the extended terms that the law then authorised. The real substance of the matter . . would have been whether it was shown that Mr Vernazza had habitually . . instituted vexatious legal proceedings. If that were shown, then the extended procedural power of the court which was made available by the Act . . as a remedial and protective measure . . would properly have been employed."
1 Cites

1 Citers


 
De Gezamenlijke Steenkolenmijnen In Limburg v ECSC High Authority C-30/59; [1960] EUECJ C-30/59; [1961] EUECJ C-30/59
24 Mar 1960
ECJ

European, Litigation Practice
(Order only) The government of the Federal Republic of Germany is, for the purpose of making its submissions in support of its conclusions during the written procedure, required to use the language of the case used in the main action, namely Dutch; but is authorized to use the german language for the oral procedure.
[ Bailii ] - [ Bailii ]
 
Howard's Will Trusts, Leven and Bradley [1961] Ch 507; [1961] 2 All ER 413
1961
ChD
Wilberforce J
Litigation Practice
It is undesirable that different judges of the same division should speak with different voices. A judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong.
1 Citers


 
Lincoln v Daniels [1962] 1 QB 237; [1961] 3 WLR 866; [1961] 3 All ER 740; (1961) 105 Sol Jo 647
1961
CA
Devlin LJ, Sellers LJ
Defamation, Litigation Practice
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen's Counsel. Held: Initial communications sent to the secretary of the Bar Council alleging professional misconduct by a barrister did not attract absolute privilege, since they were not yet a step in an inquiry before an Inn of Court.
Matters submitted to proceedings before an inquiry conducted by the Inn would attract the same privilege as they would in proceedings before a court.
Devlin LJ said: "On such a point form is of the first importance; it is by form rather than by the substance of the complaint that a writ is to be distinguished from a letter before action."
and "the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor." and
"It is not at all easy to determine the scope and extent of the principle in Watson v M'Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and pre-cognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court."
Devlin LJ explained the rationale for the distinction between domestic tribunals and those recognised by law: "A private institution, such as a club, may set up a body to determine questions of admission and expulsion and it may be composed entirely of lawyers and may follow with exactitude the procedure of a court of law. But absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. The public is not interested in the membership of a private club. The significance of . . the . . requirement . . that the Court or tribunal should be recognised by law . . is that it shows that the public is interested in the matter to be determined by the court. Parliament would not, for example, regulate the disciplining of solicitors if there were not a public interest in the sort of men who practise as solicitors. The same consideration applies to the Bar."
Devlin LJ considered that absolute privilege fell into three categories: "The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan [1905] AC 480 in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v. White (1914) 30 TLR 591 the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings."
1 Cites

1 Citers


 
Davies v Elsby Brothers Ltd [1961] 1 WLR 170
1961
CA

Litigation Practice, Limitation
The writ was issued within the limitation period for the claim against "Elsby Brothers (a firm)". In fact, the firm's business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for leave to amend the writ to change the name of the defendant, the limitation period had expired. Held: The amendment involved the addition of a new defendant, and was not merely the correction of a misnomer. Accordingly, following long established rule of practice the court held that the amendment should not be allowed.
1 Citers


 
Martin French v Kingswood Hill [1961] QB 96
1961

Devlin
Litigation Practice
A payment into court is subject to the terms of the relevant rules: "a payment into court is simply an offer to dispose of the claim on terms. If the defendant were free to formulate the terms himself, he could make his offer in whatever form he liked. But if he seeks to effect his compromise under the rules which permit a payment into court, he must make his offer according to the rules."
1 Citers


 
Riverstone Meat Co Pty Ltd v Lancashire Shipping Co ("The Muncaster Castle") [1961] AC 807
1961
HL
Lord Radcliffe, Viscount Simonds
Transport, Litigation Practice
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier's agents whose diligence or lack of it is attributable to the carrier. A shipowner's or carrier's duty under Article III, Rule 1 would not start and he would not be responsible for work carried out until the transfer of ownership, or possession of the vessel, or until the vessel came into his "orbit", service or "control".
Considered decisions of foreign courts, in particular appellate decisions, should be treated as persuasive in order to strive for uniformity of interpretation of international conventions.
Lord Radcliffe said: "It is plain to me that this conclusion turns on the consideration that the causative carelessness took place at a time before the carrier's obligation under article III (1) had attached and in circumstances, therefore, when the builders and their men could not be described as agents for the carrier 'before and at the beginning of the voyage to . . make the ship seaworthy'. This is a tenable position for those who engage themselves upon the work of bringing the ship into existence. The carrier's responsibility for the work itself does not begin until the ship comes into his orbit, and it begins then as a responsibility to make sure by careful and skilled inspection that what he is taking into his service is in fit condition for the purpose and, if there is anything lacking that is fairly discoverable, to put it right. This is recognised in the judgment. But if the bad work that has been done is 'concealed' and so cannot be detected by any reasonable care, then the lack of diligence to which unseaworthiness is due is not to be attributed to the carrier."
The contemporary background of a treaty, including the legal position preceding its conclusion, can legitimately be taken into account as part of the context relevant to the interpretation of its terms.
Hague Visby Rules III 1
1 Citers


 
Macaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd [1961] RPC 184
1961

Cross J
Litigation Practice, Costs
The court considered an allegation of non-disclosure in the case of an application to serve proceedings abroad: "If the judge is satisfied that there was no intention to deceive and the mis-statement is not grossly negligent, he may think it better not to visit it with a penalty which may fall as heavily on the defendants as on the plaintiffs, since the plaintiffs can, ex hypothesi, make a fresh application which will succeed."
1 Citers


 
Lawless v Ireland (No 1) [1961] ECHR 2; 332/57
7 Apr 1961
ECHR

Human Rights, Litigation Practice
"The Court,
Having regard to the conclusions presented by the Delegates of the European Commission of Human Rights at the hearing on 7th April 1961;
Taking note of the fact that the Agent of the Irish Government does not intend to submit conclusions on the matter in question;
Whereas in its judgment of 14th November 1960 the Court declared that there was no reason at this stage to authorise the Commission to transmit to it the written observations of the Applicant on the Commission's Report;
Whereas in the said judgment, of which the French text only is authentic, the Court has recognised the Commission's right to take into account ("de faire état") the Applicant's views on its own authority, as a proper way of enlightening the Court;
Whereas this latitude enjoyed by the Commission extends to any other views the Commission may have obtained from the Applicant in the course of the proceedings before the Court;
Whereas, on the other hand, the Commission is entirely free to decide by what means it wishes to establish contact with the Applicant and give him an opportunity to make known his views to the Commission; whereas in particular it is free to ask the Applicant to nominate a person to be available to the Commission's delegates; whereas it does not follow that the person in question has any locus standi in judicio;
For these reasons,
Decides unanimously:
With regard to the conclusions under (a), that at the present stage the written observations of the Applicant, as reproduced in paragraphs 31 to 49 of the Commission's statement of 16th December 1960, are not to be considered as part of the proceedings in the case;
With regard to (b) that the Commission has all latitude, in the course of debates and in so far as it believes they may be useful to enlighten the Court, to take into account the views of the Applicant concerning either the Report or any other specific point which may have arisen since the lodging of the Report;
With regard to (c), that it was for the Commission, when it considered it desirable to do so, to invite the Applicant to place some person at its disposal, subject to the reservations indicated above."
1 Cites

1 Citers

[ Worldlii ] - [ Bailii ]

 
 Macfoy v United Africa Company Limited (West Africa); PC 27-Nov-1961 - [1961] UKPC 49; [1962] AC 152; [1961] 3 All ER 1169
 
Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464
1962
PC
Lord Pearce
Litigation Practice
The Board's practice of restricting the hearing a dispute of fact to situations where two courts had made consistent findings of fact is not immutable and the Board may in special circumstances vary their application to some degree.
1 Citers


 
Pontin v Wood [1962] 1 QB 594; [1962] 2 WLR 258; [1962] 1 All ER 294
1962
CA
Holroyd Pearce LJ, Davies LJ
Litigation Practice
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words "the plaintiffs' claim is for damages for personal injuries". The judge in chambers held that the writ was a nullity which had not been cured by a proper statement of claim served within the limitation period. Held: The appeal against strike out was allowed. The court said that under the new rules it could make a distinction between a procedural irregularity and a nullity. The writ was defective, but not a nullity, and it could be cured by delivery of a proper statement of claim even after the expiry of the limitation period.
Davies LJ: "The real point of Mr Caulfield's argument, however, is the submission that to allow a plaintiff to cure a defective writ by the delivery of a statement of claim after the expiry of the appropriate period of limitation would be to destroy a right which has accrued to the defendant; and he relied on such cases as Weldon v Neal, Marshall v London Passenger Transport Board and Batting v London Passenger Transport Board in support of his argument. In those cases, however, the plaintiffs were seeking the leave of the court to do something to the detriment of the defendants which, without such leave, the plaintiffs had no right to do. I agree with Mr Caplan's submission that the position is quite different when a plaintiff has the right without any leave of the court to take the step which is necessary to cure any defect in his proceeding."
Holroyd Pearce LJ said: "The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute . . They will not add a new cause of action or allow a plaintiff to substitute a fresh case . . But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose - aid which is directed not to setting up a new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects." and, quoting Bowen LJ: 'it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.'
1 Citers


 
Birmingham Citizens Permanent Building Society v Caunt [1962] 1 Ch 883
1962

Russell J
Litigation Practice, Land
The court considered whether there it had jurisdiction to refuse to order possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable. Held: The court made an extensive review of the authorities. Russell J said: "where (as here) the legal mortgagee under an instalment mortgage under which by reason of default the whole money has become payable, is entitled to possession, the Court has no jurisdiction to decline the order or to adjourn the hearing whether on terms of keeping up payments or paying arrears if the mortgagee cannot be persuaded to agree to this course. To this the sole exception is that the application may be adjourned for a short time to afford to the mortgagor the chance of paying off the mortgage in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring. When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth."
1 Citers



 
 Marrinan v Vibart; CA 1962 - [1963] 1 QB 234
 
Independent Automatic Sales Ltd v Knowles and Foster [1962] 1 WLR 974
1962


Litigation Practice
If a pleading alleges all the facts which would, as a matter of law, give rise to constructive notice on the part of the other party of the matters alleged that should be enough to enable the party to argue the legal consequences of the facts alleged or proved.
1 Citers


 
International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] 1 Ch 784
1962


Litigation Practice
Section 21 permits only a declaration of the rights of the parties in lieu of an injunction against officers of the Crown and this does not empower the court to grant interlocutory declarations which would be a contradiction in terms.
Crown Proceedings Act 1947 21
1 Citers


 
In Re Druce's Settlement Trusts [1962] 1 WLR 363
1962
ChD
Russell J
Litigation Practice, Trusts
Russell J discussed the difficulties of trustees when making an application on behalf of a beneficiary of the trust: "The application was made not by a beneficiary but by the trustees. This is a disadvantage, particularly in a case such as the present, where the interests of the persons for whom the court is concerned are not exactly the same as those of some respondent. It means that there is no counsel whose sole task is to protect and support those interests. Where the trustees make the application their counsel is there to argue for the acceptance of the scheme: but at the same time his duty and that of the trustees is to be the watchdog for (for example) unborn interests. Let me say at once that Mr Brightman for the trustees, while recognising the disadvantage, overcame admirably the duality of his position. To change the metaphor, his performance as touch judge was not marred by the fact that he started in the line-out, and I was grateful for his assistance. Nevertheless, the disadvantages of this duality exist. Counsel for the applicant trustees must have an instinctive reaction against a criticism from the bench, designed to safeguard or benefit those unborn interests, which would be lacking in a respondent trustee, an instinctive tendency to be against alteration of the scheme for the approval of which he is applying. Moreover, if the criticism be in fact unsound, it is likely to take longer for the judge to be dissuaded from it because of that very duality. There are, of course, cases of applications to vary beneficial interests where it is necessary and proper that the trustees should make the application, notwithstanding the disadvantage I have mentioned. This case was one of them, the trustees being satisfied that the scheme was beneficial to their beneficiaries and no beneficiary being willing to make the application. But, in general, the trustees should not be the applicants in applications to vary beneficial trusts, unless they are satisfied that the proposals are beneficial to the persons interested and have a good prospect of being approved by the court, and further, that if they do not make the application no one will. In particular, it would not be right if it became the general practice for such applications to be made by the trustees upon the supposition that should the application fail it will be more probable (though not, of course, certain) that the costs of all parties will be directed to be met out of the trust funds."
1 Citers



 
 Robinson v Unicos Property Corpn Ltd; CA 1962 - [1962] 1 WLR 520; [1962] 2 All ER 24

 
 In re Pritchard; CA 1963 - [1963] 1 Ch 502; [1963] 1 All ER 873
 
Attorney-General v Clough [1963] 1 All ER 420; [1963] 1 QB 773
1963

Lord Parker CJ
Media, Litigation Practice
The court declined to recognise any right of the media to protect their sources from disclosure of identity where disclosure was in the public interest.
Lord Parker CJ said: "it . . would remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune".
1 Citers



 
 In Re K (Infants); CA 2-Jan-1963 - [1963] Ch 381
 
Potvin v Commission De La EEC [1963] EUECJ C-64/63; C-64/63
1 Jul 1963
ECJ

Litigation Practice
Application for authorization to enforce a garnishee order against the European Economic Community.
[ Bailii ]
 
Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika Bpk 1964 (4) SA 722 (T)
1964


Litigation Practice, Commonwealth, Limitation
(South Africa) A clear admission by an insurer of liability in the course of without prejudice negotiations about quantum was sufficient to restart the limitation period.
1 Citers



 
 Harrison-Broadley v Smith; CA 1964 - [1964] 1 WLR 456

 
 Campbell College, Belfast v Commissioner of Valuation for Northern Ireland; HL 1964 - [1964] 1 WLR 912; [1964] 2 All ER 705

 
 Ross v Associated Portland Cement Manufacturers Ltd; HL 1964 - [1964] 1 WLR 768; [1964] 2 All ER 452
 
Re Jolley [1964] P 262; [1964] 1 All ER 596
1964
CA

Wills and Probate, Litigation Practice
If a will has already been proved in common form, any person challenging the will must commence a probate action for the revocation of the previous grant.

 
Merricks and Another v Nott-Bower [1964] 1 All ER 717; [1965] 1 QB 57; [1965] 2 WLR 702
1964
CA
Lord Denning MR
Litigation Practice, Administrative
The plaintiff police officers had been disciplined by transfer in 1957 as a result of a report by an officer who was subsequently discredited. After their accuser was discredited they sought a declaration that the disciplinary action taken against them had been taken contrary to natural justice. Held. Lord Denning MR said that: "It is asked: what use can such declarations be at this stage, when the transfer took place six and a half years ago? What good does it do now? There can be no question of reopening the transfers . . on this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, which is not merely theoretical, and on which the court's gives practical guidance, then the court in its discretion can grant a declaration." and "Such being the case made, I am not prepared to say that it is unarguable. It is a well-known principle of our law that any powers conferred by statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an ulterior purpose. Whether that principle applies here or not, I do not say; all I do say is that, if the plaintiffs allege, as they did that this was a misuse of the power of transfer that it was used, not for the purpose of good administration and efficiency but for the motive of punishment they have an arguable case which they are entitled to have tried by the courts."
1 Citers


 
In re Grosvenor Hotel, London (No 2) [1965] Ch 1210; [1964] 3 All ER 354
1964
CA
Lord Denning MR, Salmon LJ
Jurisdiction, Litigation Practice
Lord Denning MR said that the Rules Committee "can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence." Public policy protects against disclosure any documents which relate to the framing of government policy at a high level.
1 Citers


 
Wong v Beaumont Property Trust Ltd [1965] 1 QB 173; [1964] 2 WLR 1325; [1964] 2 All ER 119; (1964) 108 SJ 237; [1964] EWCA Civ 4
12 Mar 1964
CA
Lord Denning MR, Pearson LJ, Salmon LJ
Land, Litigation Practice
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.
Food Hygiene (General) Regulations 1960 (SI 1960 601) - County Court (Jurisdiction) Act 1963 1 - County Courts Act 1959 51
1 Cites

[ Bailii ]
 
Kirby v Leather [1965] 2 QB 367
1965
CA
Lord Denning MR
Litigation Practice
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party's competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff "was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement." The action should have been started by a next friend. It was not, but that had been put right at the trial when at the suggestion of the judge a next friend was appointed.
Lord Denning MR said: "After a time he was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter. But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have. In particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement."
1 Citers



 
 Wenlock v Moloney; CA 1965 - [1965] 1 WLR 1238

 
 Practice Statement (Judicial Precedent); HL 1966 - [1966] 3 All ER 77; [1966] 1 WLR 1234
 
Boston v W S Bagshaw and Sons (Note) [1966] 1 WLR 1135
1966
CA
Lord Denning MR
Litigation Practice
Once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say that they meant something different: "The reasons for this are twofold: first, to secure the finality of decisions arrived at by the jury; secondly, to protect the jury themselves and to prevent them being exposed to pressure or inducement to explain or alter their views. If this were to be permitted, where is it to stop? After a jury have solemnly found a man 'Guilty' and he has been sentenced, are they to be at liberty next day to return and say they meant to find him 'Not Guilty'? It cannot be."
1 Cites

1 Citers


 
Harkness v Bell's Asbestos and Engineering Limited [1967] 2 QB 729; [1966] 3 All ER 843
1966
CA
Lord Denning MR, Diplock LJ, Russell LJ
Litigation Practice, Limitation
The plaintiff's solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) of the Limitation Act 1939 should not afford a defence to the proposed action for damages, and a writ was duly issued. A judge in chambers held that this order was a nullity, and made no order. A different judge in chambers dismissed an application to rectify the order and have it treated as valid. Held: The appeal succeeded. The court considered the different ways in which objection could be taken to proceedings according to whether the source of the objection was that it was a nullity or an irregularity.
Diplock LJ said: "Thomas William Harkness, retired boiler-lagger, if he had followed, as I have no doubt he has, the intricacies of the interlocutory proceedings in the case, must have thought that `the law is an ass'. I am not sure that this judgment will change his opinion, but at any rate he will not feel it is such an unjust ass as he must have felt before. It was to remedy just this kind of injustice that the new RSC Ord 2 r 1 was made."
Lord Denning MR said that the new rule should be construed widely and generously to give effect to its manifest intentions: "This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that 'it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.'"
and "I think that any application to the court, however informal, is a 'proceeding'. There were 'proceedings' in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court."
Rules of the Supreme Court Ord2 R2 - Limitation Act 1963 2(1)
1 Cites

1 Citers


 
Munnich v Godstone Rural District Council [1966] 1 WLR 427
1966


Litigation Practice
When considering requests for a declaration, questions of pure law may more readily be made, than those dependent upon the particular facts of the case.
1 Citers



 
 Salomon v Customs and Excise Commissioners; CA 1966 - [1967] 2 QB 116; [1966] 2 All ER 340; [1966] 2 Lloyds Rep 460; [1966] 3 WLR 36
 
Ough v King [1967] 1 WLR 1547
1967
CA
Lord Denning MR, Danckwerts LJ, Diplock LJ
Land, Nuisance, Litigation Practice
A claim was made for breach of a right to light. The defendant relied on Waldram diagrams to demonstrate that the new extensions did not reduce the amount of adequate light remaining available below the 50% threshold. The relevant room had a floor area of 156.5ft2; before the construction 100.25ft2 had been adequately lit; after the construction 80.25ft2 remained adequately lit. The adequately lit area had declined from 64.05% to 51.27%. The county court judge found that an actionable infringement had occurred. Held: The defenedant's appeal failed.
Danckwerts LJ referred to the "more demanding standards at the present time in the modern situation".
Diplock LJ referred to the 50:50 rule as "a convenient rule of thumb" in the 1920s "and perhaps later".
Lord Denning MR: "I think the judge was entitled to have regard to the higher standards expected for comfort as the years go by. . . . In these days I would not myself be prepared to regard the 50:50 rule of Mr. Waldram as a universal rule. In some cases a higher standard may reasonably be required."
1 Citers



 
 Mitchell v Harris Engineering Co Ltd; CA 1967 - [1967] 2 QB 703
 
Re Sainsbury's Settlement [1967] 1 WLR 476
1967


Litigation Practice
If an order is made properly and within the jurisdiction of the court, the fact that it was sought with the motive of seeking to achieve a better tax position is usually irrelevant.
1 Citers



 
 Suhner and Co AG v Transradio Ltd; 1967 - [1967] RPC 329

 
 Bourne (Inspector of Taxes) v Norwich Crematorium Ltd; 1967 - [1967] 1 WLR 691
 
Harman Pictures N V v Osborne [1967] 2 All ER 324; [1967] 1 WLR 723
1967
ChD
Goff J
Litigation Practice, Intellectual Property
The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book 'The Reason Why'. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a marked similarity. Held: There was a copyright infringement in the screenplay where the similarity in language was slight but the choice of incidents was the same. Goff J discussed the situation which arose where there was an apparent similarity of ideas: "It is common ground that there can be an original work entitled to protection although the subject matter is not original, but is for example, as in the present case, some well-known event in history. The precise amount of knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act, 1911, cannot be defined in precise terms: per Lord Atkinson in Macmillan & Co. Ltd. v. Cooper. There is, however, no dispute that Mrs. Woodham-Smith displayed all these qualities in amply sufficient measure and acquired copyright in her book, whilst the plaintiffs' title to the film rights by assignment is also not disputed. What is much more difficult is whether the plaintiffs have made out a sufficient prima facie case of infringement, or rather intended infringement, and before considering the facts, I must refer at some length to the relevant law.
There is no copyright in ideas or schemes or systems or methods: it is confined to their expression . . .Br />One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history, see Poznanski v. London Film Production Ltd. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources, as was emphasised in the case of Pike v. Nicholas…"
The judge asked: "... did John Osborne work independently and produce a script which, from the nature of things, has much in common with the book, or did he proceed the other way round and use the book as a basis, taking his selection of incidents and quotations therefrom, albeit omitting a number and making some alternations and additions, by reference to the common sources and by some reference to other sources?"
Goff J: (quoting from authority) "... another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. In determining whether an injunction should be ordered, the question, where the matter of the plaintiff's work is not original, is how far an unfair or undue use has been made of the work? If, instead of searching into the common sources and obtaining your subject-matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it is an illegitimate use". And
"In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law has been precisely stated by Hall V.C. in Hogg v. Scott, .the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man's labour or, in other words, his property.'
1 Citers



 
 Richards v Naum; CA 1967 - [1967] 1QB 620

 
 Initial Services Ltd v Putterill; CA 1967 - [1967] 3 All ER 145; [1968] 1 QB 396
 
Donmar Productions Ltd -v Bart (Note) [1967] 1 WLR 740; [1967] 2 All ER 338
1967


Litigation Practice

1 Citers


 
In the Estate of Fuld, decd (No 3) [1968] P 675; [1967] 3 WLR 401; [1967] 3 All ER 318
1967
ChD
Scarman J
Jurisdiction, Family, Litigation Practice, Wills and Probate
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile. Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: "First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." and
"(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . ." and
"necessary intention must be clearly and unequivocally proved. " The domicile of origin is more enduring than the domicile of choice: " . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: "There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
. . And: "when all is dark, it is dangerous for a court to claim that it can see the light."
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law - the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences - presumptions as they are sometimes called - to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and 'he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'."
1 Cites

1 Citers


 
Page One Records Ltd v Britton [1967] 1 WLR 157
1967

Stamp J
Litigation Practice
The court was asked to consider a five year contract to manage a pop group, in respect of which contract the manager claimed injunctive relief to prevent the group working outside the agreement. Held: The injunction was refused. The manager was left to its prima facie claim to damages, on the ground that the contract involved obligations of trust and confidence and was more a joint venture, approaching the relationship of partnership, than anything else. He also thought that an injunction would amount to forcing the pop group to remain idle or to continue to employ in a fiduciary capacity a manager and agent in whom they "for reasons good, bad or indifferent" had lost confidence "and who may, for all I know, fail in its duty to them".
1 Citers



 
 Harlow and Jones v Panex (International) Ltd; ChD 1967 - [1967] 2 Lloyd's Rep 509
 
P B J Davis Manufacturing Co Ltd v Fahn [1967] 1 WLR 1059
1967


Litigation Practice
Interpleader proceedings
1 Citers



 
 Peachey Property Corporation Limited v Robinson; 1967 - [1967] 2 QB 543
 
PA Thomas and Co v Mould [1968] 1 All ER 963; [1968] 2 WLR 737; [1968] 2 QB 913
1968
QBD
O'Connor J
Intellectual Property, Litigation Practice, Contempt of Court
The court urged caution in the grant of an injunction to protect information for which confidence was claimed but where that claim might not succeed. O'Connor J refused to enforce by committal an injunction restraining the defendants from making use of certain confidential information acquired by them during their employment, when the nature of the alleged confidential information had not been specified in the evidence or disclosed to the court.
O'Connor J said: "But where parties seek to invoke the power of the court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it."
1 Citers


 
White v Western [1968] 2 QB 647
1968
CA

Litigation Practice
There are some irregularities with respect to the way judgment has been obtained which will allow that judgment to be set aside.
1 Citers


 
Hill v Archbold [1968] 1 QB 686
1968
CA
Denning, Danckwerts LJJ
Litigation Practice, Costs
Denning LJ said: "Much maintenance is considered justifiable today which would in 1914 have been considered obnoxious. Most of the actions in our courts are supported by some association or other, or by the State itself. Comparatively a few litigants bring suits, or defend them at their own expense. Most claims by workmen against their employers are paid for by a trade union. Most defences of motorists are paid for by insurance companies. This is perfectly justifiable and is accepted by everyone as lawful, provided always that the one who supports the litigation, if it fails, pays the costs of the other side".
Danckwerts LJ said: "the law of maintenance depends upon the question of public policy, and public policy . . is not a fixed and immutable matter. It is a conception which, if it has any sense at all, must be alterable by the passage of time."
1 Citers



 
 White v Weston; CA 1968 - [1968] 2 QB 647

 
 Priddle v Fisher and Sons; CA 1968 - [1968] 1 WLR 1478; [1968] 3 All ER 506
 
In re Duncan, decd, Garfield v Fay [1968] P 306; [1968] 2 WLR 1479
1968

Ormrod J
Legal Professions, Litigation Practice, International
Ormrod J rejected a submission that where foreign lawyers are involved no privilege is recognised by an English Court if privilege is not recognised by the municipal law of the forum of the foreign lawyer. He said: "The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law it must first determine the foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose.
It only remains to consider the position where proceedings are already on foot in a foreign court. If disclosure is required by the law of such a court the other side will see the documents in dispute and so gain an advantage. Is that a reason for making an exception to our lex fori? In my judgment it is not. These matters are matters to be decided according to the practice of this court. I, therefore, hold that all the documents which are communications passing between the plaintiff and his foreign legal advisers are privileged, whether or not proceedings in this or any other court were contemplated when they came into existence."
1 Cites

1 Citers



 
 Gurtner v Circuit; CA 1968 - [1968] 2 QB 587
 
Barton v William Low and Co Ltd 1968 SLT (Notes) 27
1968

Lord Stott
Scotland, Litigation Practice
The court was asked the question as to whether it was competent for a party who had been brought into the action under the third party procedure to challenge the relevancy of averments which the pursuer, who made no case against the third party, was seeking to incorporate in her pleadings as part of her case against the defenders. Held: Lord Stott said: "The third parties have been convened into the process by the defenders, and the pursuer makes no case against them. The defenders, however, have set out in their pleadings what is, in effect, a right of relief against the third parties. The third parties have therefore a clear interest in the success or failure of the pursuer's case against the defenders, and one of the objects of third party procedure, as I see it, is to enable the third parties to be heard on any matter in which they have a relevant interest in relation to the case between pursuer and defender. The question of whether the pursuer has made a competent or relevant case against the defenders is such a matter, and in my opinion the third parties are entitled to take a plea to the relevancy of the pursuer's pleadings and to be heard upon that plea."
1 Citers



 
 Allen v McAlpine; CA 1968 - [1968] 2 QB 245
 
I Waxman and Sons Ltd v Texaco Canada Ltd [1968] 1 DR 642
1968


Commonwealth, Litigation Practice
(Ontario High Court) Fraser J said: "I am of opinion that in this jurisdiction a party to a correspondence within the 'without prejudice' privilege is, generally speaking, protected from being required to disclose it on discovery or at trial in proceedings by or against the third party."
1 Citers


 
Re Seaford Dec'd [1968] P 53
1968
CA
Willmer LJ, Davies LJ
Family, Litigation Practice, Wills and Probate
A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made. Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband's death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.
1 Citers



 
 Onassis and Calogeropoulos v Vergottis; HL 1968 - [1968] 2 Lloyd's Rep 403
 
The Forest Lake [1968] P 270
1968


Litigation Practice
The presiding judge sitting with two elder brethren of Trinity House, was compelled to retire due to ill health in the middle of the case. The president Sir Jocelyn Simon ordered, in the circumstances, that the action be heard de novo and Mr Justice Karminski was nominated to re-hear it. The plaintiffs applied to him for an order restoring the action to the list for hearing and that the evidence already given in court on commission should be used, and an order for directions made by the previous judge be renewed so as to enable the same elder brethren, who had sat as assessors at the first hearing, to sit again. Mr Justice Karminski plainly regarded himself as continuing the proceedings previously heard by Mr Justice Hewson. "The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle but for the observations of Scrutton LJ in Coleshill … ."
1 Cites

1 Citers



 
 Armah v Government of Ghana and Another; HL 1968 - [1968] AC 192
 
Roe and Another v Robert McGregor and Sons Ltd; Bills v Roe [1968] 1 WLR 925; [1968] 2 All ER 636
1968
CA
Harman LJ
Professional Negligence, Litigation Practice
The plaintiff was driving a van at night. He didn't see a 'road closed' sign erected by the defendant contractors, and proceede down a 30 ft bank injuring himself and his passenger. He said the contractors' the sign was inadequate and that he had had very little to drink and when counsel for the defendants sought to cross-examine him to suggest that he was drunk, the judge would not allow it. The judge found in favour of the driver and his passenger. Later, the contractors discovered credible evidence that the driver had been drunk. Held: The contractors' appeal succeeded after fresh evidence from a passenger and a publican was allowed which showed that he had been drinking. The judgment was set aside, and a re-hearing ordered. The contractors' solicitors didn't interview the passenger supposing, reasonably, that he would be unlikely to give evidence against his friend the driver.
Harman LJ said: "It is by no means to be taken on these motions that this evidence is likely in the end to be believed. These motions are brought for leave to adduce this extra evidence. But in my judgment that would be, in a case of this sort, a hopelessly inconvenient course to take, because quite clearly, if Harrison and the publican are to have their evidence admitted, evidence to rebut what they say must also be admitted and there must be evidence on one side and the other which will very greatly alter the whole shape of the testimony. The only course, I think, for this court, if it thinks that it should do anything, is to order a new trial and I think that counsel in the end conceded really that that was the proper course to take if the court were moved to take any course."
As to the alleged failing of the solicitor, Harman LJ said: "It was said that the contractors' solicitor knew that [the passenger] had been in the car: she had only, as it is said, to go to him, ask him for a statement, and the whole matter would have come out at a much earlier stage, and there would have been no need to come at this date and ask for the admission of fresh evidence. It is said that the solicitor made an error of judgment which, although perhaps understandable, be it said, was not excusable in the sense that she could have been said to have acted with reasonable diligence. In my opinion, that charge entirely fails. I cannot see that there was any default at all on the part of the very experienced solicitor acting for the contractors in not approaching [the passenger]. He was a man directly in the other camp. He might be expected at any moment to start proceedings himself for damages, although he had not done so nor sent any letter making any claim hitherto. He was a person who was unlikely in the extreme, it might reasonably be supposed, to be willing to give evidence against his friends in the car that they were all drunk at the time. And I cannot think that it was any part of the duty of this lady acting as solicitor to the contractors to the contractors to go and try to worm something out of [the passenger]."
1 Cites

1 Citers


 
I Waxman and Sons Ltd v Texaco Canada Ltd [1968] 2 OR 452
2 Jan 1968


Commonwealth, Litigation Practice
(Court of Appeal of Ontario) The court approved the decision below.
1 Cites

1 Citers


 
Whishaw v Stephens (on appeal from In re Gulbenkian's Settlement) (No 1) [1970] AC 508; [1968] UKHL 5
31 Oct 1968
HL
Lord Upjohn, Lord Reid, Lord Hodson, Lord Guest, Lord Donovan
Litigation Practice, Trusts
Parties disputed the effect of clauses describing the beneficiaries of a trust. Held: The clause did not make sense as it stood. In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of beneficiaries before a trust can be recognised. The modern approach of a court is not to reject any part of a legal document as meaningless without first trying hard to give it a sensible meaning.
1 Cites

1 Citers

[ Bailii ]

 
 Anisminic Ltd v Foreign Compensation Commission; HL 17-Dec-1968 - [1969] 2 AC 147; [1968] UKHL 6; [1969] 1 All ER 208; [1969] 2 WLR 163
 
Braniff v Holland and Hannen and Cubitts (Southern) Ltd [1969] 1 WLR 1533
1969
CA
Widgery LJ
Limitation, Litigation Practice
Widgery LJ said: "Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments were to be permitted although the statutory period had run did not mean that in general there was any relaxation of the principle formerly applying under Weldon v. Neal(4); I respectfully agree with that approach. I find it very difficult to think that, when specific exemption is made in paragraphs (3),(4) and (5) of Order 20 rule 5 in cases where the statute has run, it is then legitimate to interpret the rule as making similar provision available and similar excuses available in cases which are not within the precise terms of those three paragraphs."
1 Citers


 
Pritchard v Westminster Bank Ltd [1969] 1 All ER 999
1969

Lord Denning MR, Edmund Davies and Phillimore LJJ
Litigation Practice
The court set aside a garnishee order attaching a debt and compelling immediate payment to the plaintiff, in circumstances that would prefer the plaintiff over all other creditors. Lord Denning said: "The general principle, when there is no insolvency, is that the person who gets in first gets the fruits of his diligence" but "the court will not allow one creditor, however diligent he may be, to get an advantage over the others by getting in first with a garnishee order."

 
Customs and Excise Commissioners v Top Ten Promotions Limited [1969] 1 WLR 1163; [1969] 3 All ER 85
1969

Lord Upjohn
Litigation Practice
Lord Upjohn, discussing the construction of a statute, said: "It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly referred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament."
1 Citers



 
 John v Rees and Others; Martin and Another v Davis and Others; ChD 1969 - [1970] 1 Ch 345; [1969] 2 All ER 275
 
Zimmer v Zimmer [1969] 1 WLR 1349
1969


Litigation Practice


 
Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570
1969
CA
Lord Donovan
Litigation Practice, Damages
The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages. Held: Where a plaintiff claims that he has suffered damage, ie injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extend of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.
Lord Donovan said: "There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions "special damage" and "special damages" are used in such a wide variety of meanings, it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.
The Rules of the Supreme Court are of no direct assistance. Ord 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 "every pleading must contain the necessary particulars of any claim . ." By rule 15 "a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading "damage" (meaning injury) or "damages" (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall "put the defendants on their guard and tell them what they have to meet when the case comes on for trial. (per Cotton LJ in Philipps v Philipps (1878) QBD 127, 139).
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claim will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. 'The question to be decided does not depend on words, but is one of substance' (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at p 529).
The same principle gives rise to a plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is 'special' in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
. . if the claim is one which cannot with justice be sprung on the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in Susquehanna [1926] AC 655 at p 661 'if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.'
What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiffs claim 'damages' is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning."
1 Citers


 
Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1
1969
CA
Lord Denning MR
Limitation, Litigation Practice

1 Citers


 
Pinner v Everett [1969] 1 WLR 1266; [1969] 3 All ER 257; (1969) 64 Cr App R 160
1969
HL
Lord Reid, Lord Morris
Litigation Practice, Road Traffic
The House was asked whether or not a person was "driving or attempting to drive" a motor vehicle when he had been stopped by the police in connection with the illumination of his rear number plate, and the driver got out of the car and started to talk to the police and they, smelling alcohol, required him to take a blood test which he refused to do. Held: Lord Reid said:"In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute." and "It asks me to choose between two phrases 'actually driving' and 'the driver, neither of which is to be found in the Act. It is in effect substituting 'the driver' for the statutory words 'person driving or attempting to drive'. The two are not the same. A person can often be properly called the driver although for quite a long time he has neither been driving nor attempting to drive."
Lord Morris said: "In my view, the words 'person driving' in . . at least cover and include someone who has been driving but who has temporarily interrupted his driving and is about to resume driving." and "Thus, if someone intended to park his car in the road outside his home he might drive to a place outside his house and there stop; just before and at that very instant he would be a 'person driving' and in general terms he could be described as 'the driver'. But if, having finished his journey, he stopped his engine and locked his car and went inside his home, he would then have ceased to be a 'person driving' although in general terms someone might still describe him as 'the driver'. Questions of fact and of degree may well arise."
Road Traffic Act 1968
1 Citers


 
Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378; [1969] 3 All ER 201
1969
CA
Danckwerts LJ, Sir Gordon Willmer, Ormrod J
Litigation Practice
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement agreement or not. Once it has been decided that there is an agreement, only the material containing the agreement is held not to be privileged.
Ormrod J said that sometimes letters get headed "without privilege" in the most absurd circumstances, but where a letter is not headed "without prejudice" unnecessarily or meaninglessly the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain.
1 Citers


 
Pople v Evans [1969] 2Ch 255
1969
ChD
Ungoed-Thomas J
Litigation Practice
The court discussed the doctrine of res judicata: "…the title relied on to establish such privity must arise after the judgment on which the res judicata is based, or at any rate after the commencement of the proceedings in which that judgment was made…" But he immediately continued "…and such title as Mrs Pople might have here arose before relevant proceedings were commenced."
1 Citers


 
Cooper v Scott Farnell [1969] 1 WLR 120
1969
CA
Willmer LJ
Litigation Practice
The defendant argued that since he had had no notice of the proceedings, the judgment against him should be set aside: "It appears to me that [the rule] contemplates that although there may be service, it may take place even without knowledge on the part of the defendant. If that happens, the court is given power in its discretion to make such order as may be just."
1 Citers


 
Hampstead and Suburban Properties Ltd v Diomedous [1969] 1 Ch 248
1969
ChD
Megarry J
Land, Litigation Practice
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied "according to robust and common sense standards" Megarry J granted an interlocutory injunction to restrain the playing of musical instruments in breach of covenant, saying: "Thirdly, there is Doherty v Allman. I accept, of course, that Lord Cairns' words were uttered in a case where what was in issue was a perpetual injunction and not an interlocutory injunction. Indeed, the words seem to be obiter, for no negative covenant was present in that case. But these considerations do not preclude the words from having any weight or cogency in relation to an interlocutory injunction. Where there is a plain and uncontested breach of a clear covenant not do a particular thing, and the convenantor promptly begins to do what he has promised not to do, then in the absence of special circumstances it seems to me that the sooner he is compelled to keep his promise the better. In such a case I do not think that the enforceability of the defendant's obligation falls into two stages, so that between the issue of the writ and the trial the defendant will be enjoined only if that is dictated by the balance of convenience and so on, and not until the trial will Lord Cairns' statement come into its own. Indeed, Lord Cairns' express reference to "the balance of convenience or inconvenience" suggests that he had not forgotten interlocutory injunctions. I see no reason for allowing a covenantor who stands in clear breach of an express prohibition to have a holiday from the enforcement of his obligations until the trial. It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is."
1 Citers


 
Miles v Bull [1968] 3 All ER 682; [1968] 3 WLR 1090; [1969] 1 QB 258
1969

Megarry J
Litigation Practice
The husband and wife separated and the husband sold the property in which the wife was living. He then brought an action for possession of the property against her and now sought summary judgment. Held: Megarry J said: "the defendant can obtain leave to defend if . . [she] satisfied the court "that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial". These last words seem to me to be very wide. They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfied the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. . Order 14 is for the plain and straightforward, not for the devious and crafty. . " and "there is here a case for investigation, and so not for summary decision". The witness was not "devious and crafty" rather than "plain and straightforward".
RSC Order 14
1 Citers


 
Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9
1969

Megarry J
Litigation Practice
In a fast developing area of law, judges should acknowledge the value of 'fertilisers of thought': "argued law is tough law . . I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the law be well known".
1 Citers



 
 Dietz v Lennig Chemicals Limited; HL 1969 - [1969] 1 AC 170
 
Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616
1969

Donaldson J
Litigation Practice, Transport
In the event of inconsistency between the French and English versions of the Convention, the French text prevails.
Warsaw-Hague Convention
1 Citers


 
Waghorn v Wimpey (George) and Co [1969] 1 WLR 1764
1969

Geoffrey Lane J
Personal Injury, Litigation Practice
The plaintiff pleaded that he slipped on a bank, but the evidence was that he slipped on a path. Held: The variation in the case presented from that pleaded was fatal to the case. The court considered such variations: "In the present case Mr Archer contends that the true version of the facts is just a variation, modification or development of what is averred, and is not something new, separate and distinct. The only similarities, however, between the plaintiff's allegations in his pleadings, the way his case was presented, and what in fact took place were these: first of all, the plaintiff slipped; secondly, he slipped at his place of work; and thirdly, he slipped somewhere near a caravan, when it is alleged that he did slip somewhere near a caravan. But the whole burden of the claim put forward by the plaintiff, and the whole burden of the defence to that claim prepared by the defendants and put forward on their behalf by Mr Machin, has been the safety or otherwise of the bank, and not the safety or otherwise of the path at the right-hand side of the caravan, where it runs alongside the dip. In my judgment, this is not a case which is just a variation, modification or development of what is averred. It is a case which is new, separate and distinct, and not merely a technicality. Let me hasten to add that if matters emerge, particularly matters of technicality which, perhaps, could not be foreseen by those responsible for pleading cases, and those things emerge during a case, then it would be quite wrong to dismiss a plaintiff's claim because his pleadings have not measured up to the technical facts which have emerged. One often listens sympathetically to applications to amend in those circumstances. Here, however, there is nothing technical at all. A man is said to have slipped. There is nothing technical about that. One must test the plaintiff's submissions in this way: if these allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendant's preparation of the case, and conduct of the trial, have been any different? The answer to that is undoubtedly ´Yes.' Evidence would have been sought as to the safety of the pathway alongside the caravan; as to the frequency with which it was used; as to the position of the valve under the caravan. I say that because there was a dispute as to its precise position. Mr Younger, the charge-hand, said it was on the left-hand side of the caravan. Mr Frost said it was on the right-hand side. If the plaintiff's case had been pleaded to the effect that it was whilst he was on his way to that valve that he had slipped, then the preparation of the case would have been entirely different and its presentation would have been different. There was no application here for leave to amend. Indeed, Mr Archer may have been very wise not to make any such application, but the upshot of this matter is that this was clearly so radical a departure from the case as pleaded as to disentitle the plaintiff to succeed."
1 Citers



 
 Morris v Redland Bricks Ltd; HL 1969 - [1970] AC 652; [1969] 2 WLR 1437; [1969] 2 All ER 576
 
Sayle v Cooksey [1969] 2 Lloyd's Rep 618
1969

Sachs LJ
Litigation Practice
The court questioned whether the availability of an alternate remedy for a party against his solicitors should affect the decision to strike out a plaintiff's claim.
1 Citers


 
Leppington v Belfast Corporation Unreported, 18 March 1969
18 Mar 1969

Lord MacDermott CJ
Litigation Practice
Lord MacDermott CJ discussed the doctrine of stare decisis: "Heretofore this Court has accepted and respected the doctrine, and as matters stand, I see no reason why, with one possible reservation, we should change the position even if, as a court, we were free to do so. The reservation I would make refers to cases—such as the present—where there is no appeal from this Court to the House of Lords. In such a case where the ratio of the earlier decision (1) cannot be found with certainty, or (2) is plainly wrong and it would be unjust or unfair to act upon it, I consider that this Court should then be at liberty to disregard the earlier decision and to reach an independent conclusion"

 
SA Chanel v Cepeha Handelsmaatschappij Nv R-31/68; [1969] EUECJ R-31/68
3 Jun 1969
ECJ

Litigation Practice
Reference for a preliminary ruling: Arrondissementsrechtbank Rotterdam - Netherlands. -Order adjourning
1 Citers

[ Bailii ]
 
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