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Litigation Practice - From: 1970 To: 1979

This page lists 166 cases, and was prepared on 02 April 2018.


 
 In re D (Infants); CA 1970 - [1970] 1 WLR 599; [1970] 1 All ER 1089
 
Hunter Douglas Australia Pty v Perma Blinds (1970) 44 ALJR 257
1970

Windeyer J
Litigation Practice
(Australia) The court considered the meaning of the word 'deemed' in a statute. Windeyer J said: "the verb ‘deem’, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge, or reach a conclusion about something … the words ‘deem’ and ‘deemed’ when used in a statute thus simply state the effect or meaning which some matter or thing has – the way in which it is to be adjudged. This need not import artificiality or fiction. It may simply be the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant. Hundreds of examples of this usage of the word appear in the statute books."
1 Citers


 
Gross v Lewis Hillman Ltd [1970] Ch 445
1970
CA
Cross LJ
Litigation Practice
Where there has been no misdirection on an issue of fact by the trial judge the presumption is that his conclusion on issues of fact is correct. The Court of Appeal will only reverse the trial judge on an issue of fact when it is convinced that his view is wrong. In such a case, if the Court of Appeal is left in doubt as to the correctness of the conclusion, it will not disturb it.
1 Citers


 
Associated Leisure (Phonographic Equipment Co) Ltd v Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754
1970
CA
Lord Denning MR
Defamation, Litigation Practice
The defendant sought to be allowed to amend its pleadings to add justification. They now appealed against refusal. Held: The amendment was allowed. However, in general, in a libel action, if the defendant seeks at a late stage to amend his defence by adding a plea of justification, his application will be closely inquired into and it will be allowed where he has shown due diligence in making his inquiries and investigations, but it may well be refused if he has been guilty of delay or has not made proper inquiries earlier.
Lord Denning MR said: "Like a charge of fraud, [counsel] must not put a plea of justification on the record unless he has clear and sufficient evidence to support it."
1 Citers


 
E F Phillips and Sons Ltd v Clarke [1970] Ch 322
1970
ChD
Goff J
Litigation Practice
The court considered the methods of enforcing a Tomlin compromise.
Goff J stated: "The defendant . . is not represented, nor has he appeared in person; but counsel for the plaintiffs, has very properly drawn my attention to a number of cases in which the question of the mode of enforcing a Tomlin order has been considered, and to a statement in Daniell's Chancery Practice (8th ed.), at p.646, which reads:- 'a consent order, embodying a new agreement between the parties beyond the scope of the action can only be enforced in a fresh suit' for which the authority cited is Re Hearn, De Bertodano v. Hearn (No.1) (1913) 108 LT 452, 737.
There is no express authority that a Tomlin order can be enforced by an application in the same action. It is clearly settled by Dashwood v. Dashwood [1927] WN 276, that it cannot be enforced directly by committal proceedings; it is first necessary to obtain an order requiring the party in breach to perform his obligation under the compromise. But the question is, can such an order be obtained in the original action?
In the absence of authority I would have thought it clearly could have been even where, as in the present case, a compromise goes outside the ambit of the original action, which compromises often do, because it is part of the form of order that the proceedings are not absolutely stayed but are stayed except for the purpose of carrying the terms in effect, and liberty to apply as to carrying the terms into effect is expressly reserved.
. . In Re Hearn not only did the compromise go outside the ambit of the original action but, first, no liberty to apply had been reserved at all and the stay was absolute and unqualified, and secondly, the relief sought was not a mere enforcement of the agreed terms but sought to modify them to give effect to the original intention in changed circumstances. The prime ground for the decision in the Court of Appeal was that the applicant was seeking relief against trustees outside the ambit of the compromise itself, but Sir Herbert Cozens-Hardy MR said:- 'But apart from that, although that alone is a sufficient ground for dismissing this appeal, there is also this further ground - namely, that this is an attempt to enforce, not a title under the will, which alone was dealt with by the trustees' summons, but an entirely new and independent bargain between the husband and the wife, and that could not be done in the old proceedings.'
That is not a dictum: it is expressly a ground for the decision, albeit one which the court thought unnecessary because of the strength of their first ground. That being so, in a case on all fours it is binding on me. But Re Hearn in my judgment is distinguishable from the ordinary form of Tomlin order case by the circumstance to which I have already adverted that there was an unqualified stay and no liberty to apply, and it is also distinguishable from this particular case, and, I apprehend, from most applications to enforce a Tomlin order, in that the relief sought in Re Hearn was not mere enforcement but variation. I therefore distinguish it on those grounds.
That being so, in my judgment it is not an authority for the bald proposition stated in Daniell's Chancery Practice which I have read. In my judgment provided an order is in the normally appropriate form with a qualified stay and a liberty to apply, and provided the application is strictly to enforce the terms embodied in the order and the schedule, and does not depart from the agreed terms, an order giving effect to the terms may be obtained under the liberty to apply in the original action, notwithstanding the compromise itself goes beyond the ambit of the original dispute and the provision sought to be enforced is something which could not have been enforced in the original action and which, indeed, is an obligation which did not then exist but arose for the first time under the compromise."


 
 Manchester Corporation v Connolly; CA 1970 - [1970] Ch 420
 
Industrial Furnaces v Reaves (1970) RPC 605.
1970

Graham J
Intellectual Property, Litigation Practice
The plaintiffs succeeded at the trial in respect of their claim for misuse of confidential information and other claims, and their entitlement to an injunction and delivery up of material containing confidential information. In argument about the form of the order, counsel for the defendants #suggested that a number of the documents of which delivery up was sought might well contain confidential information of the Defendants which would thus be placed in the hands of the plaintiffs. Held: Graham J rejected the submission, saying: "If a wrongdoer includes material of his own and adds it to material which he has taken from the plaintiffs in my judgment he cannot complain if equity demands that when he has been found out he should deliver up the documents, even though they may now contain information of his own."
1 Citers


 
McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; CAT 679/1991
10 Jul 1970
CA
Davies LJ, Sachs LJ, Karminski LJ
Litigation Practice
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct attracted the attention of the Judge who intimated that he should desist whereupon the barrister left the Court. The Judge dismissed the husband’s petition but granted the wife a decree nisi. Held: The appeal succeeded. The Judge had acted in error. Every party had the right to have a friend present in court beside him/her to assist by prompting, taking notes and quietly giving advice. By reason of the Judge’s intervention the husband had been deprived of that right and, therefore, there had been an irregularity in the proceedings. The court approved the use of an unpaid unqualified friend to a litigant to assist him in presenting his case when acting in person in a defended divorce case. Such a friend would not be able address the court except with the express allowance by the court of an ad hoc right of audience.
1 Cites

1 Citers



 
 In re Field; 1971 - [1971] 1 WLR 555

 
 Worcester Works Finance Ltd v Cooden; CA 1971 - [1972] 1 QB 210; [1971] 3 ALL ER 708

 
 Purcell v F C Trigell Ltd; CA 1971 - [1971] 1 QB 359
 
Worcestershire Works Finance Limited v Cowden Engineering Limited [1971] 3 All ER 706
1971


Litigation Practice
The Privy Council, if it disapproves of a previous decision of the Court of Appeal, is at liberty to depart from it.
1 Citers



 
 Slough Estates Ltd v Slough Borough Council; HL 1971 - [1971] AC 958
 
Brookfield Properties Limited v Newton [1971] 1 WLR 862
1971


Litigation Practice
An allegation of negligence against an architect in the design of a building arose out of the same or substantially the same facts as an allegation of negligence against him in respect of the supervision of the construction of the same building, so that even if it added a new cause of action, such an amendment would be allowed.
1 Citers


 
The "Ferdinand Retzlaff" [1972] 2 Lloyd's Rep 120
1971

Brandon J
Litigation Practice
The plaintiff shipowners claimed damages for detention following a collision with the defendants' ship. There was an issue as to how long the ship repairs would have taken if they had been done at Bremen. The defendants adduced evidence on this point in the form of an exchange of letters. Held: In considering what weight to give to the letters under section 6(3) of the Civil Evidence Act 1968, the court identified relevant circumstances, and said also that it was necessary to take account of the fact that the evidence was unsworn and could not be tested by cross-examination. This was particularly important where the evidence related to hypothetical rather than actual facts.
Brandon J said: "My view is quite simply that matters of this importance, in a case of this kind, should be proved by oral evidence, and that letters obtained at the time and in the way that these were obtained should have little weight attached to them. I cannot think that the Civil Evidence Act 1968, was intended, in general, to change the long established system by which seriously disputed central issues in civil cases are tried on oral evidence, given on oath and capable of being tested by cross-examination, and to substitute for it a system of trial on unsworn documents brought into existence by parties to the proceeding post litem mortam, and I do not think the Act should be used, or rather abused, so as to produce such a result."
Civil Evidence Act 1968 6(3)
1 Citers


 
Regina v Schildcamp [1971] AC 1
1971
HL
Lord Upjohn
Litigation Practice
Lord Upjohn considered the duty of the court when considering an Act of Parliament: "The task of the court is to ascertain the intention of Parliament; you cannot look at the section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act."
1 Citers


 
Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 1 WLR 204
1971

Pennycuick V-C
Litigation Practice, Landlord and Tenant
An order was sought to require the defendant tenants to keep an airfield open as a going concern. Held: The order was refused. Pennycuick V-C said: "It is very well established that the court will not order specific performance of an obligation to carry on a business." and "It is unnecessary in the circumstances to discuss whether damages would be an adequate remedy to the company."
1 Citers


 
Ascherberg, Hpwood and Crew Ltd v Casa Musicale Sonzogno di Petro Ostall SNC [1971] 1 WLR 1128
1971


Litigation Practice
A party seeking to rely upon foreign law has a duty to plead it.
1 Citers



 
 Becker v Teale; 1971 - [1971] 1 WLR 1475
 
Fredericks and Pelhams Timber Buildings v Wilkins [1971] 1 WLR 1197
1971
QBD
Roderick Evans J
Litigation Practice

1 Citers



 
 Mulholland v Mitchell; HL 1971 - [1971] AC 666; [1971] 1 WLR 93
 
Shepherd Homes Ltd v Sandham [1971] Ch 340
1971

Megarry J
Litigation Practice
Megarry J said: "a high degree of assurance that at the trial it will appear that at the trial the injunction was rightly granted."
1 Citers



 
 Purcell v Triggle; CA 1971 - [1971] 2 All ER 1162
 
Empresa Cubana de Fletes v Lagonisi Shipping Co. Ltd. (The Georgios C) [1971] 1 Ll R 7
1971


Litigation Practice

1 Citers



 
 Regina v Schildkamp; HL 1971 - [1971] AC 1

 
 Acrow (Automation) Ltd v Rex Chainbelt Inc; 1971 - [1971] 3 All ER 1175

 
 In Re Wykeham Terrace; ChD 1971 - [1971] 1 Ch 204
 
Attorney General v Chaudry [1971] 1 WLR 1614
1971
CA
Lord Denning MR
Litigation Practice, Administrative
The court has jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.
1 Citers



 
 Comet Products UK Ltd v Hawkex Plastics; CA 1971 - [1971] 2 QB 67; [1971] 1 All ER 1141
 
Vendervell Trustees Ltd v White [1971] AC 912; [1970] 3 All ER 16; (1970) 46 Tax Cas 341
1971
HL
Viscount Dilhome
Litigation Practice
If the dispute could be adjudicated in the absence of a party and where no order was sought against that party, joinder was unnecessary and generally not allowed.
Order 15 Rule 13 requires that the presence of the party to be joined is necessary to enable the matters in dispute to be effectually and completely decided, that a plaintiff is entitled to choose the defendants he wishes to sue, but that the court has power to add a party whose proprietary or pecuniary rights are or may be directly affected by the proceedings.
RSC 15.13
1 Citers


 
Skone v Skone and Another [1971] 1 WLR 812; [1971] 2 All ER 582
1971
HL
Lord Denning, Lord Hodson
Litigation Practice
The husband appealed, seeking a new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had committed adultery with her. Held: The House admitted the fresh evidence. Where a strong prima facie case of wilful deception is disclosed, a new trial will be ordered.
Lord Denning said: "It is very rare that an application is made for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence for a new trial, three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, although it need not be incontrovertible."
Lord Hodson said: "Assuming, as I think your Lordships must for the purposes of this application, that the letters sought to be tendered as evidence are genuine, the basis of the judge's finding of fact at the trial has been falsified to such an extent that to leave matters as they are would, in my opinion, be unjust . . A strong prima facie case of wilful deception of the court is disclosed." and "The situation of the wife is or was, however, at the material times a peculiar one in that she was in the opposite camp in the sense that she was anxious not to do anything without the approval of the co-respondent, feeling that her interests were bound up with his. The petitioner was advised by counsel, as I have said, and I find it impossible to hold that in these circumstances it is right to hold that the petitioner failed to exercise due diligence in this matter."
1 Cites

1 Citers


 
Mandelli v Commission C-56/70; [1971] EUECJ C-56/70
21 Jan 1971
ECJ

Litigation Practice
(Judgment) Application for revision of the judgment given by the court on 8 february 1968 in case 3/67 between the same parties.
[ Bailii ]
 
Tak Ming Company Limited v Yee Sang Metal Supplies Company [1971] UKPC 28
5 Oct 1971
PC
Lord Pearson
Commonwealth, Litigation Practice

1 Citers

[ Bailii ]
 
Lane v Willis [1972] I WLR 333; [1972] 1 All ER 430
1972
CA
Sachs LJ
Litigation Practice
An order for the medical examination of a party to an action is an invasion of personal liberty, and and should only be granted when it is reasonable in the interests of justice so to order, and when the refusal of a medical examination is alleged to be unreasonable. The Court has jurisdiction to grant a stay whenever it was just and reasonable so to do and could do so where the Plaintiff's refusal was such as to prevent the just determination of the cause. Sachs LJ said: "[when] refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says that it is unreasonable and who applies for the order to show, on the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as counsel for the defendants very rightly conceded."
1 Citers



 
 Fleet Mortgage and Investment Company Limited v Lower Maisonette; 1972 - [1972] 1 WLR 765

 
 Re Taylor's Application; 1972 - [1972] 2 QB 369
 
Norwich Pharmacal Co and others v Customs and Excise Commissioners [1972] 1 All ER 972
1972
ChD

Intellectual Property, Litigation Practice
The court considered an application for an order that the other party identify third party wrong-doers.
1 Citers


 
Palamisto General Enterprises SA v Ocean Marine Insurance Limited [1972] 2 WLR 1425
1972
CA
Buckley LJ
Litigation Practice
"Where a party asserts his opponent's complicity in … criminal misconduct, the case is pre-eminently one in which not only the RSC (Ord. 18 r.12(1) and Ord. 72 r. 7(2)) but also fair treatment require that, so far as practicable, the matter shall be pleaded with particularity so that the party accused may know what case he has to meet. But even if the allegations in the present statement of claim fall short of asserting criminal misconduct, they undoubtedly impute conduct of a gravely improper character which call for no less clear particularisation ."
1 Citers


 
Moore v News of the World [1972] 1 QB 441
1972
CA
Stephenson LJ, Lord Denning MR
Litigation Practice, Torts - Other
An article was published which the plaintiff said left readers with the false apprehension that she had written it. She claimed under the statutory tort of false attribution. Held: The judge was correct to direct the jury to make up their minds what the impression was to the reader. Confirming that a judge need not deal in detail with facts which were admitted by both parties when directing the jury in a defamation trial, “There were left out of the summing up, as out of every summing up which deserves the name, some of the things which one party, and probably both parties, would have liked put in; but there was no omission which could have led to a misunderstanding or injustice.”
Lord Denning MR set out section 5 of the 1952 Act and said: "That is a very complicated section, but it means that a Defendant is not to fail simply because he cannot prove every single thing in the libel to be true. If he proves the greater part of it to be true, theneven though there is a smaller part not proved, nevertheless the Defendant will win as long as the part not proved does not do the Plaintiff much more harm."
Copyright Act 1956 843 - Defamation Act 1952 5
1 Citers


 
Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464
1972
CA
Orr LJ
Litigation Practice
The court considered what was to be understood by a judgment which had been regularly obtained. Orr LJ (dissenting): "the point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given or signed, and if at that time there is nothing known to the court (or to the plaintiff whose duty it would be to communicate it to the court) which indicates that the relevant process has not been delivered in the ordinary course of post, it is to be deemed to have been so delivered for the purposes of that judgment, though it will be open to the defendant to apply to have that judgment set aside on the court's discretion on the ground, inter alia, that he was not served in time."
1 Citers


 
C H Giles and Co v Morris [1972] 1 WLR 307
1972

Megarry J
Litigation Practice
Megarry J considered why a court should be reluctant to create an obligation to continue a business where a court might be asked to judge compliance:: "difficulties of constant superintendence" were a "narrow consideration" because "there is normally no question of the court having to send its officers to supervise the performance of the order . . . . Performance . . . is normally secured by the realisation of the person enjoined that he is liable to be punished for contempt if evidence of his disobedience to the order is put before the court; . . ."
1 Citers



 
 In re Barrell Enterprises; CA 1972 - [1973] 1 WLR 19; [1972] 3 All ER 631

 
 Middlemiss and Gould v Hartley Corporation Pty Ltd; CA 1972 - [1972] 1 WLR 1643
 
Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary [1973] AC 388; [1972] 2 All ER 1057
1972
HL
Lord Simon of Glaisdale, Lord Reid
Litigation Practice
The House considered a claim for public interest immunity. Held: Lord Simon of Glaisdale said: "the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material . . but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived . . by the Crown . . or by anybody else". It refers to the rule that certain evidence is inadmissible on the ground that to adduce it would be contrary to the public interest.
Lord Reid said: "There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence."
1 Cites

1 Citers



 
 Jones v Secretary of State for Social Services; Jones v Hudson; HL 1972 - [1972] 2 WLR 210; [1972] 1 All ER 145
 
Norwich Pharmacal Co and others v Customs and Excise Commissioners [1972] 2 All ER 813; [1972] RPC 743
2 Jan 1972
CA
Buckley LJ
Intellectual Property, Litigation Practice
The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names. Held: Buckley LJ said: "If a man has in his possession or control goods the dissemination of which, whether in the way of trade or, possibly, merely by way of gifts (see Upmann v Forester (1883) 24 ChD 231) will infringe another's patent or trade mark, he becomes, as soon as he is aware of this fact, subject to a duty, an equitable duty, not to allow those goods to pass out of his possession or control at any rate in circumstances in which the proprietor of the patent or mark might be injured by infringement ensuing. The man having the goods in his possession or control must not aid the infringement by letting the goods get into the hands of those who may use them or deal with them in a way which will invade the proprietor's rights. Even though by doing so he might not himself infringe the patent or trade mark, he would be in dereliction of his duty to the proprietor. This duty is one which will, if necessary, be enforced in equity by way of injunction: see Upmann v Elkan (1871) LR 12 Eq 140 (1871) 7 Ch App 130. The man having possession or control may also be under a duty to give information in relation to the goods to the proprietor of the patent or mark: Upmann v Elkan ."
1 Cites

1 Citers



 
 Cassell and Co Ltd v Broome and Another; HL 23-Feb-1972 - [1972] 2 WLR 645; [1972] AC 1027; [1972] UKHL 3

 
 Pritam Kaur v S Russell and Sons Ltd; QBD 1-Jun-1972 - [1972] 1 All ER 306; [1973] 1 QB 336; [1973] 2 WLR 147

 
 Pritam Kaur v S Russell and Sons Ltd; CA 2-Jun-1972 - [1973] 1 QB 336; [1973] 1 All ER 617; [1973] 2 WLR 147
 
Halifax Building Society v Clark [1973] Ch 307
1973
ChD
Sir John Pennycuick V-C
Land, Litigation Practice
In order to satisfy the requirements for obtaining statutory relief under the 1970 Act, the mortgagor had to be able to show that he was likely to be able to pay within the reasonable period referred to not only the arrears of instalments but also the principal sum due under the mortgage. Sir John Pennycuick V-C interpreted "any sums due under the mortgage" in sub-section (1) restrictively as the entire mortgage debt.
Administration of Justice Act 1970 36(1)


 
 Rothermere v Times Newspapers Ltd; CA 1973 - [1973] 1 WLR 448
 
Morley London Developments Ltd v Rightside Properties Ltd (1973) 117 SJ 876
1973


Litigation Practice
It is open to a claimant to withdraw part of his claim without notice to the other side in order to take advantage of the administrative procedures provided by Order 19 rule 2 or, for that matter, Order 19 rule 3. But the judgment taken in such circumstances must make it clear on its face that the inappropriate claims have been abandoned.
1 Citers


 
John Zinc Co. Ltd. v Wilkinson [1973] RPC 717
1973
CA

Litigation Practice
Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings.
1 Citers


 
Snelling v John Snelling [1973] 1 QB 79
1973


Litigation Practice
It can be an abuse of process for a party to bring proceedings on a cause against a defendant already released from liability for consideration.
1 Citers


 
Gunning v United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586
1973
CA
Lord Denning MR
Litigation Practice
With regard to pre-action disclosure and the question of whether a party was 'likely' to be a party to subsequent proceedings, ‘likely’ must be given its more extended and open meaning because otherwise one of the fundamental purposes of the statute will have been undermined.
1 Citers


 
M and W Grazebrook Ltd v Wallens [1973] ICR 256
1973

Sir John Donaldson
Employment, Litigation Practice
Communications between the client and his non-lawyer representative, and communications between that representative and third party witnesses, are privileged despite the fact that the representative may have no professional qualification. Sir John Donaldson said: "Before industrial tribunals it is the rule, rather than the exception, for parties to be represented by persons other than lawyers. Indeed, it is the policy of Parliament to encourage such representation. If the law to be applied to industrial tribunals were not as stated in the note in the county court rules: "Communications not only with legal advisers, but with other agents, with an actual view to the litigation in hand, and the mode of conduct of it, also are privileged"], the position would arise that, for example, a personnel officer, when examining as a witness a works foreman, could, at the end of the works foreman's evidence, be called upon to hand over the proof of evidence from which he had been examining the witness. Obviously, that would be a wholly untenable situation."
1 Citers



 
 In re S (F G) (Mental Health Patient); 1973 - [1973] 1 WLR 178

 
 McPhail v Persons, Names Unknown; CA 1973 - [1973] 3 All ER 393; [1973] Ch 447

 
 Norwich Pharmacal Co and others v Customs and Excise Commissioners; HL 26-Jun-1973 - [1974] AC 133; [1973] 3 WLR 164; [1973] 2 All ER 943; [1973] UKHL 6; [1974] RPC 101; [1973] FSR 365
 
RCA Corporation v Reddingtons Rare Records [1975] 1 All ER 38; [1974] 1 WLR 1445
1974


Litigation Practice
Interlocutory relief on the basis of the Norwich Pharmacal principle could be ordered, for example, on motion.
1 Cites


 
des Gaz SA v Falks Veritas Ltd [1974] Ch 381; [1974] 3 All ER 51
1974
CA
Lord Denning MR
European, Litigation Practice
The court considered for the first time, the effect of the Rome Treaty. It "came about because of a tin can" .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, not as at the date that the statement of claim was filed, unless a statute changing the law expresses a clear contrary intention.
European Communities Act 1972
1 Citers



 
 Wallersteiner v Moir; 1974 - [1974] 1 WLR 991

 
 Rees v Sinclair; 1974 - [1974] 1 NZLR 180
 
Buswell v Inland Revenue Commissioners [1974] 1 WLR 1631
1974
CA
Orr LJ, Russell and Stamp LJJ
Taxes Management, Litigation Practice

1 Cites

1 Citers


 
Hall and Woodhouse Ltd v Panorama Hotel Properties Ltd [1974] 2 Lloyd's Rep 413
1974


Arbitration, Litigation Practice

1 Citers


 
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1974] AC 405; [1973] 2 All ER 1169
1974
HL
Denning, Cross LL
Intellectual Property, Litigation Practice
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying documents supplied to them by others containing confidential information about the affairs of persons other than the plaintiff who were not parties to the litigation. Much of the material appears to have been provided by those persons to the Commissioner of Customs and Excise pursuant to their statutory powers. Held: The Court had a discretion to order disclosure of the documents and a Court would do so "if it is in the public interest . . if either party wanted them before the Court, he would have to subpoena the third party to produce them."
As to this ground of privilege, Lord Denning said: "Although the commissioners are not entitled to Crown privilege, they are, I think, entitled to claim privilege on another ground. The privilege is quite sufficiently claimed by Sir Louis Petch in his affidavit on the ground of confidence, but is not a privilege peculiar to the Crown. It is a privilege available to all litigants. It comes down to us from the Chancery Court. It is this; a party to litigation is not obliged to produce documents, or copies of documents, which do not belong to him, but which have been entrusted to his custody by a third party in confidence. It frequently happens that a party who thinks he may be involved in litigation goes to a friend who has a material document. The friend allows him in confidence to see it and take a copy of it. He takes a copy and hands it to his solicitor. The original document came into existence long before any litigation was contemplated. It was not prepared for the purpose of getting advice on it. If the party had been entrusted by the owner with the original, it would clearly be privileged from production, simply because it did not belong to him."
Lord Denning then quotes some authorities and continues: "Likewise the copy in his hands is also privileged, because he was only allowed to take the copy in confidence, and it would be an abuse of that confidence to disclose it without the permission of the owner of the original."
Lord Cross said: "Here, on the other hand, one can well see that the third parties that have supplied this information to the commissioners because of their statutory powers would very much resent disclosure by the commissioner to the appellant and that it is not at all fanciful for Sir Louis to say that the knowledge that the commissioners cannot keep such information secret may be harmful to the official working of the Act. In a case where the considerations for and against disclosure appear to be fairly evenly balanced the court should I think uphold the claim for privilege on public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure."
Purchase Tax Act 1963
1 Cites

1 Citers


 
Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505; [1974] 2 All ER 97
1974
HL
Lord Reid, Lord Wilberforse
Litigation Practice
The normal meaning of the word "or" is disjunctive, although in a suitable context it can be read as equivalent to "and", or as expressing a non-exclusionary alternative equivalent to "and/or"
1 Citers



 
 Grant v Southwestern and County Properties Ltd; ChD 1974 - [1975] Ch 185; [1974] 2 All ER 465
 
Jugoslavenska Oceanske Plovidba v Castle Investment Co Inc [1974] QB 292
1974
CA
Lord Denning MR
International, Arbitration, Damages, Litigation Practice
London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same effect. Held: English arbitrators had jurisdiction to make their awards in a foreign currency where that currency was the currency of the contract. Such an award could be enforced with the leave of the court by converting the award into sterling at the rate of exchange ruling at the date of the award.
Lord Denning MR said: "In my opinion English arbitrators have authority, jurisdiction and power to make an award for payment of an amount in foreign currency. They can do this – and I would add, should do this – whenever the money of account and the money of payment is in one single foreign currency. They should make their award in that currency because it is the proper currency of the contract. By that I mean that it is the currency with which the payments under the contract have the closest and most real connection. Likewise, whenever the proper currency of a contract is a foreign currency, English arbitrators can and should make their award in that currency, unless the parties have expressly or impliedly agreed otherwise. The proper currency can usually be ascertained without difficulty. But if the transaction is closely connected with two currencies (as in The the Hu [1970] P 106 Japanese salvors of a Panamanian vessel) the arbitrators can and should make their award in whichever of the two currencies seems to them to produce the most appropriate and just result." and (Roskill LJ) "I would only add on this part of the case that this decision does not amount to a general licence to arbitrators and umpires to make awards in any currency they choose heedless of the provisions of the contract with which they are concerned. The currency of account and the currency of payment will in most cases be easily ascertainable just as the proper law of a contract is in most cases easily ascertainable. In a few cases the problem will be difficult as in a few cases the question of proper law is difficult. But even in a difficult case the problem must ultimately be capable of solution and the arbitrators (if they wish) can – as I would think – always decide as a matter of discretion to make an award in sterling unless either the terms of the contract in question or of the arbitration agreement under which their jurisdiction arises or some other reason prevents them from so doing."
Arbitration Act 1950 26
1 Citers


 
EMI v Pandit [1975] 1 WLR 302
3 Dec 1974
ChD
Templeman J
Litigation Practice
The making of an order allowing the plaintiff's to execute a search on the other party's premises is in effect part of the process of discovery. Templeman J discussed the making of such orders ex parte: "if it appears that the object of the plaintiffs' litigation will be unfairly and improperly frustrated by the very giving of the notice which is normally required to protect the defendant, there must be exceptional and emergency cases in which the Court can dispense with the notice and, either under power in the rules to dispense with notice or by the exercise of its inherent jurisdiction make such a limited Order, albeit ex paste, as will give the plaintiffs the relief which they would otherwise be unable to obtain. In the present case I am satisfied that, if notice were given to the defendant, that would almost certainly result in the immediate destruction of the articles and information to which the plaintiffs are entitled . .
I think it right to stress that, in my judgment the kind of order which is sought now can only be justified by a very strong case on the evidence and can only be justified where the circumstance are exceptional to this extent, that it plainly appears that justice requires the intervention of the Court in the manner which is sought and without notice, otherwise the plaintiffs may substantially be deprived of a remedy . .
it must be shown that irreparable harm will accrue, or that there is a high probability that irreparable harm may accrue to the plaintiffs, unless the particular form of relief now sought is granted to them".
1 Citers



 
 Husband's of Marchwood Ltd v Drummond Walker Developments Ltd; 1975 - [1975] 1 WLR 603; [1975] 2 All ER 30
 
Camilla Cotton Oil Co v Granadex SA [1975] 1 LLR 470
1975
CA
Lord Denning MR
Litigation Practice

1 Cites

1 Citers


 
Associated Portland Cement Manufacturers Ltd v Teigland Shipping A/S (The Oakworth) [1975] 1 Ll Rep 581
1975


Litigation Practice

1 Citers


 
Regina v Wandsworth County Court ex parte Wandsworth London Borough Council [1975] 1 WLR 1314
1975


Litigation Practice
Where the court grants a writ of possession requiring the bailiff to put the claimant into possession of land, in principle, the bailiff will remove all those who are on the relevant land, irrespective of whether or not they were parties to the action.
1 Citers


 
Wallersteiner v Moir (No 2) [1975] QB 373; [1975] 1 All ER 849; [1975] 2 WLR 389
1975
CA
Buckley LJ, Scarman LJ, Denning LJ
Litigation Practice, Legal Aid, Company
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder. Held: A minority shareholder bringing a derivative action on behalf of a company could obtain the authority of the court to sue as if he were a trustee suing on behalf of a fund, with the same entitlement to be indemnified out of the assets against his costs and any costs he may be ordered to pay to the other party. The court said that the minority shareholder could make a Beddoe application in the same way as a trustee and so secure an assurance that he would not be personally liable for any costs. Since he was asserting the company's cause of action on the company's behalf, the Legal Aid provisions prevented the grant of legal aid.
Denning LJ said of someone bringing an action on behalf of the company that "the minority shareholder, being an agent acting on behalf of the company is entitled to be indemnified by the company against all costs and expenses reasonably incurred by him in the course of the agency. It is analogous to the indemnity to which a trustee is entitled from his cestui que trust who is sui juris."
As to the position of a solicitor in litigation, he said: 'It may be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements; first in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment; secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court, with a duty to the court to ensure that his client's case which he must of course present and conduct with the utmost of care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister has similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations.'
. . And "It is a fundamental principle of our law that a company is a legal person, with its own corporate identity, separate and distinct from the directors or shareholders, and with its own property rights and interests to which alone it is entitled. If it is defrauded by a wrongdoer, the company itself is the one person to sue for the damage. Such is the rule in Foss v. Harbottle (1843) 2 Hare 461. The rule is easy enough to apply when the company is defrauded by outsiders. The company itself is the only person who can sue. Likewise, when it is defrauded by insiders of a minor kind, once again the company is the only person who can sue. But suppose it is defrauded by insiders who control its affairs - by directors who hold a majority of the shares - who then can sue for damages? Those directors are themselves the wrongdoers. If a board meeting is held, they will not authorise the proceedings to be taken by the company against themselves. If a general meeting is called, they will vote down any suggestion that the company should sue them themselves. Yet the company is the one person who is damnified. It is the one person who should sue. In one way or another some means must be found for the company to sue. Otherwise the law would fail in its purpose. Injustice would be done without redress."
Scarman LJ said: "The indemnity is a right distinct from the right of a successful litigant to his costs at the discretion of the trial judge; it is a right which springs from a combination of factors - the interest of the company and its shareholders, the relationship between the shareholder and the company, and the court's sanction (a better word would be 'permission') for the action to be brought at the company's expense. It is a full indemnity such as an agent has who incurs expense in the authorised business of his principal."
Buckley LJ said: "[T]here are circumstances in which a party can embark on litigation with a confident expectation that he will be indemnified in some measure against costs. A trustee who properly and reasonably prosecutes or defends an action relating to his trust property or the execution of the trusts is entitled to be indemnified out of the trust property. An agent is entitled to be indemnified by his principal against costs incurred in consequence of carrying out the principal's instructions . . The next friend of an infant plaintiff is prima facie entitled to be indemnified against costs out of the infant's estate . . It seems to me that in a minority shareholder's action, properly and reasonably brought and prosecuted, it would normally be right that the company should be ordered to pay the plaintiff's costs so far as he does not recover them from any other party. In all the instances mentioned the right of the party seeking indemnity to be indemnified must depend on whether he has acted reasonably in bringing or defending the action, as the case may be: see, for example, as regards a trustee, In re Beddoe, Downes v Cottam [1893] 1 Ch 557. It is true that this right of a trustee, as well as that of an agent, has been treated as founded in contract. It would, I think, be difficult to imply a contract of indemnity between a company and one of its members. Nevertheless, where a shareholder has in good faith and on reasonable grounds sued as plaintiff in a minority shareholder's action, the benefit of which, if successful, will accrue to the company and only indirectly to the plaintiff as a member of the company, and which it would have been reasonable for an independent board of directors to bring in the company's name, it would, I think, clearly be a proper exercise of judicial discretion to order the company to pay the plaintiff's costs. This would extend to the plaintiff's costs down to judgment, if it would have been reasonable for an independent board exercising the standard of care which a prudent business man would exercise in his own affairs to continue the action to judgment. If, however, an independent board exercising that standard of care would have discontinued the action at an earlier stage, it is probable that the plaintiff should only be awarded his costs against the company down to that stage . . There is a well established practice in Chancery for a trustee who has it in mind to bring or defend an action in respect of his trust estate to apply to the court for directions: see In re Beddoe, Downes v Cottam [1893] 1 Ch. 557. If and so far as he is authorised to proceed in the action, the trustee's right to be indemnified in respect of his costs out of the trust property is secure. If he proceeds without the authority of an order of the court, he does so at his own risk as to costs. It seems to me that a similar practice could well be adopted in a minority shareholder's action."
Buckley LJ also discussed the role of a legal adviser in litigation and the nature of a contingency fee, saying: "A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty . . It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case, which he must, of course, present and conduct with the utmost care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations."
1 Cites

1 Citers



 
 Bestobell v Bigg; 1975 - [1975] FSR 421
 
Bryanston Finance Limited v de Vries [1975] QB 703
1975

Lord Diplock
Litigation Practice
If A claimed to be the victim of a tort committed by joint tortfeasors, and if A obtained either a judgment against one or more of them, or the benefit of a settlement by which he released one or more of them, then subject to certain exceptions, A thereby released the others
1 Citers



 
 Tiverton Estates Ltd v Wearwell Ltd; CA 1975 - [1975] Ch 146

 
 Miliangos v George Frank (Textiles) Ltd; CA 1975 - [1975] QB 487

 
 Greater London Council v Jenkins; 1975 - [1975] 1 WLR 155

 
 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd; PC 1975 - [1975] AC 581
 
F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry [1975] AC 295; [1974] 2 All ER 1128; [1974] 3 WLR 104
1975
HL
Lord Diplock, Lord Reid, Lord Wilberforce
Administrative, Litigation Practice, Constitutional
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages. Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant "cannot be compelled to give an undertaking but if he will not give it he will not get the injunction."
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: "The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages." and "The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant's benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction."
. . "In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)."
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2) - Monopolies and Mergers Act 1965
1 Citers


 
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
1975

Gibbs J
Litigation Practice
Gibbs J: "The question whether the remedy which the person to whom the duty is owed may obtain against the person who has violated the duty is proprietary or personal may sometimes be one of some difficulty. In some cases the fiduciary has been declared a trustee of the property which he has gained by his breach; in others he has been called upon to account for his profits and sometimes the distinction between the two remedies has not, it appears, been kept clearly in mind."
1 Citers


 
Mothercare v Robson Books [1975] FSR 466
1975

Megarry VC
Litigation Practice
When the court has to decide whether there is a serious issue between the parties for the purposes of granting an injunction, what the court had to do was to consider the prospects of success and consider whether they existed either in substance or reality.
1 Citers


 
Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093
1975
CA
Lord Denning MR
Litigation Practice
The plaintiff company had chartered a ship to the defendants. A large sum was now claimed for hire, and a string prima facie case made out. The charterers could not be found but there was evidence of funds at a bank in London. An ex parte application to grant an injunction restraining the charterers from disposing of or removing from the jurisdiction any of the assets which were within the jurisdiction was refused. The company appealed. Held: The appeal succeeded. The court 'rediscovered' its ability to make interim asset freezing orders.
1 Citers


 
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509; [1980] 1 All ER 213
1 Feb 1975
CA

Litigation Practice
An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets. Held. The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: "A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient." The order could be made even though it dealt with assets in which the plaintiff claimed no direct right.
Supreme Court of Judicature (Consolidation) Act 1925 45(1)
1 Citers



 
 American Cyanamid Co v Ethicon Ltd (1); HL 5-Feb-1975 - [1975] 2 WLR 316; [1975] AC 396; [1975] UKHL 1
 
Colledge v Crossley Times, 18 March 1975
18 Mar 1975
CA

Litigation Practice
The Master of the Rolls discussed undertakings given to support injunctions: ". that it was unfortunate that the undertaking in damages was not put into the original order. It was an automatic undertaking which was invariably inserted when an interim injunction was granted. If afterwards at the trial there was shown to be no right to the injunction the plaintiff would have to pay damages as the price of getting the interim injunction. Undoubtedly the failure to include the undertaking came within the slip rule. The undertaking should be inserted."
1 Citers



 
 Anton Piller v Manufacturing Processes Ltd; CA 8-Dec-1975 - [1976] Ch 55; [1976] 1 All ER 779; [1975] EWCA Civ 12; [1976] 2 WLR 162; [1976] RPC 719; [1976] FSR 129
 
Senior v Holdsworth [1976] QB 23
1976

Lord Denning MR
Litigation Practice
A subpoena requiring the production of documents had been served. Held: A witness ought not to be required to comply with a letter of request if it appeared to the court “that the request is irrelevant, or fishing, or speculative, or oppressive".
1 Citers


 
Tetra Molectric Limited v Japan Imports Limited [1976] RCC 541
1976
CA
Buckley LJ, Orr LJ, Sir John Pennycuick
Litigation Practice
The court had allowed another company to be added as respondent to an appeal by a plaintiff against the judge's decision against a patent's validity. "Sub-paragraph (ii) of paragraph (b) widens the discretion of the court to a great extent, for now the court may add any person such as is described in that sub-paragraph if the question or issue involved is one which in the opinion of the court it would be just and convenient to determine as between the applicant and the present party to the proceedings as well as between the parties to the proceedings themselves."
Rules of the Supreme Court O15 r6
1 Citers


 
Regina v Greater London Council ex Parte Blackburn [1976] 1 WLR 550
1976


Litigation Practice

1 Citers


 
Regina v Bloomsbury and Marylebone County Court ex parte Villerwest Limited [1976] 1 WLR 362
1976


Litigation Practice

1 Citers



 
 Re Golden Chemicals Limited; 1976 - [1976] Ch 300

 
 Minnesota Mining and Manufacturing Co v Johnson and Johnson; 1976 - [1976] RPC 671
 
Canada Enterprises Corp Ltd v MacNab Distilleries Ltd [1987] 1 WLR 813
1976
CA

Litigation Practice
(Decided in 1976) "inexpedient" in the rule, simply means unjust. Because there was not the requisite identity of parties, the strict requirements of set off were not fulfilled.
RSC Order 47 R 1
1 Citers



 
 BP Exploration Co (Libya) Ltd v Hunt; 1976 - [1976] 3 All ER 879; [1976] 1 WLR 788

 
 Camilla Cotton Oil Co v Granadex SA; HL 1976 - [1976] 2 LLR 10

 
 Regina v A Circuit Judge (sitting at Norwich County Court) ex parte Wathen; QBD 1976 - (1976) 33 P & CR 423
 
Re Lord Cable [1976] 3 All ER 417
1976

Slade J
Litigation Practice
Slade J said: "I add one further observation in relation to the evidentiary position. American Cyanamid Co. v. Ethicon Ltd. may have led prospective plaintiffs to the belief, perhaps partially justified, that it is not necessary for them to adduce affidavit evidence in support of a motion for an interlocutory injunction of such a precise and compelling nature as might have been required before that decision. Nevertheless, in my judgment it is still necessary for any plaintiff who is seeking interlocutory relief to adduce sufficiently precise factual evidence to satisfy the court that he has a real prospect of succeeding in his claim for a permanent injunction at the trial. If the facts adduced by him in support of his motion do not by themselves suffice to satisfy the court as to this, he cannot in my judgment expect it to assist him by inventing hypotheses of fact on which he might have a real prospect of success."
1 Citers


 
Glass (Cardiff) v Jardean Properties [1976] CLY 2151
1976


Litigation Practice

1 Citers


 
New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630
1976

Cooke J
Litigation Practice, Commonwealth
(New Zealand High Court) Cooke J: "Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."
1 Citers



 
 The Eschersheim; The Jade; HL 1976 - [1976] 1 WLR 430; [1976] 2 Lloyds Rep 1
 
Capital and Suburban Properties v Swycher [1976] Ch 319
1976
CA
Buckley LJ
Litigation Practice
Although in certain procedural decisions, reasons need not be given, they otherwise must be. Buckley LJ said: "Litigants are entitled to know on what grounds their cases are decided. It is of importance that the legal profession should know on what grounds cases are decided, particularly when questions of law are involved. And this Court is entitled to the assistance of the Judge at first instance by an explicit statement of his reasons for deciding as he did."
1 Citers


 
Practice Direction (Judgments: Foreign Currency) [1976] 1 WLR 83
1976


Litigation Practice

1 Citers



 
 Farrell v Alexander; HL 24-Jun-1976 - [1977] AC 59; [1976] UKHL 5; [1976] 2 All ER 721
 
McPhee v Heatherwick 1977 SLT (Sh Ct) 46
1 Jul 1976

Sheriff Macphail
Scotland, Litigation Practice
(Glasgow Sheriff Court) The court asked whether, when a prior action had been disposed of by dismissal, it was or was not always open to a pursuer to raise a new action. Held: The defender's plea of res judicata was sustained.
1 Citers


 
James Buchanan and Company Ltd v Babco Forwarding and Shipping (UK) Ltd [1976] EWCA Civ 9; [1977] QB 208
2 Dec 1976
CA
Lord Denning MR, Roskill LJ, Lawton LJ
Damages, Litigation Practice
A trailer full of whisky had been stolen. Four fifths of its retail value was excise duty. Because it was to have been exported, duty had not been paid. On the theft the owners had had to pay the duty. The owners sued the carriers for the loss, but the court had to decide the value of the cargo. Held: At common law the carriers would have to pay the full losses, but the 1965 Act imported the European Convention.
Lord Denning discussed the correct approach to interpretation of an international convention.
Carriage of Goods by Road Act 1965
1 Cites

1 Citers

[ Bailii ]
 
Gleeson v J Wippell and Co Ltd [1977] 1 WLR 510; [1977] 3 All ER 54
1977
ChD
Sir Robert Megarry VC
Litigation Practice
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. "Second, it seems to me that the sub-stratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that having due regard to the subject matter in dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in the proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest". Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa." " but "Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicion. A defendant ought to be able to put his own defence in his own way and to call his own evidence."
1 Citers


 
Suthendran v Immigration Appeal Tribunal [1977] AC 359; [1977] Imm AR 44; [1976] 3 All ER 611; [1976] UKHL 8
1977
HL
Lord Russell of Killowen
Litigation Practice, Immigration
The Appellant had been given leave under section 3(1)(b) of the 1971 Act to enter and remain in the United Kingdom for 12 months. Before it expired, he applied for his leave to be varied by way of extension under section 3(3)(a) of the Act. The respondent refused the application; in consequence, the Appellant appealed against the decision relying upon section 14(1) of the 1971 Act: "Subject to the provision of this part of the Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against variation of the leave (whether as regards duration or conditions), or against any refusal to vary it;" The Courts were troubled as to whether or not the Appellant had a right of appeal to the adjudicator under section 14. Held: (Majority) Section 14(1) was not to be read as giving a right of appeal to a person whose limited leave to remain in the United Kingdom had expired at the time of applying for a variation, given the phrase "a person who has a limited leave". The majority were not prepared to read that phraseology as including persons who had previously had leave to remain.
Lord Russell of Killowen said: "In my opinion this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extension he will no doubt treat the application as an application for the grant of leave to remain: but I observe that there is no right of appeal from a refusal to grant such a leave to remain . ."
Immigration Act 1971 3(1)(b)
1 Citers

[ Bailii ]

 
 Goldsmith v Sperrings Ltd; CA 1977 - [1977] 1 WLR 478; [1977] 2 All ER 566
 
Herbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert Berry [1977] 1 WLR 1437; [1977] 1 All ER 161; [1977] UKHL TC_52_113; [1980] AC 562; 53 TC 241; [1979] STC 735; [1979] TR 335
1977
HL
Lord Simon of Glaisdale, Lord Russell
Litigation Practice, Insolvency, Landlord and Tenant
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty.
Lord Russell said: "Finally section 325 cannot avail the liquidator: . . It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act" and "So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding - I use the word in a non-technical sense - against the property of a company." S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. "The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ."
Companies Act 1948 325 - Taxes Management Act 1970 61
1 Cites

1 Citers

[ Bailii ]
 
Metzger v Department of Social Security [1977] 3 All ER 444
1977

Megarry VC
Litigation Practice
A court's declaration should constitute only what it has found after proper argument.
1 Citers


 
Ansah v Ansah [1977] Fam 138
1977
CA
Ormrod LJ, Stamp LJ and Sir John Pennycuick
Family, Litigation Practice
Ormrod LJ: "Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately." Such circumstances tend to occur more frequently in family disputes than in other types of litigation: "but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days' notice to the other side… Circumstances, of course, may arise when prior notice cannot be given to the side; for example, cases where … a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fairly satisfied that such protection is necessary."
1 Citers


 
Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) [1977] 3 All ER 717; [1978] AC 547
1977
HL
Lord Denning, Lord Diplock, Roskill L
Litigation Practice
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: "No one is bound to furnish information against himself. It [the common law] says: 'If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer." and "once it appears that a witness is at risk, then "great latitude should be allowed to him in judging for himself the effect of any particular question": see Reg. v. Boyes (1861) 1 B. & S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken - a real and appreciable risk - as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents."
Lord Diplock said: "Classes of documents provided the description of the class is sufficiently clear, may be required to be produced on subpoena duces tecum."
Roskill LJ added: "It cannot, I think, be right in these cases for the court to attempt a quantitive assessment of the probability one way or the other of the risk of proceedings ultimately being taken, and then to seek to draw the line, one way where the probabilities in the view of the court are thought to be more or less evenly balanced and the other where the balance is more disparate. It is not for the court to resolve problems of this kind by calculating odds. I think that the right question is to ask that posed by Shaw LJ on Friday afternoon. Can exposure to the risk of penalties (or in other cases to the risk of prosecution for a criminal offence) be regarded as so far beyond the bounds of reason as to be no more than a fanciful possibility?"
1 Cites

1 Citers


 
Fulham (orse Fullam) v Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651
1977
CA
Lord Denning MR, Scarman LJ
Litigation Practice, Defamation
A local newspaper circulating in Teesside, where the claimant had been appointed deputy headmaster of a school, published an article in 1973 saying of the claimant that he was a former Roman Catholic priest who had left his parish in the Salford diocese and later married and it was claimed of him that he "went off very suddenly from the parish where he was a curate about seven years ago". In fact he had given up the priesthood in 1962, married in 1964, and his wife had a child in 1965. Held: Where an innuendo is relied on the claimant must generally specify the persons who are said to know the "special facts" that would lead them to the identification or meaning relied on. Only a reader with special knowledge of the facts, either of the date of the claimant's marriage or of that of the birth of his child, could derive an adverse impression from the article and that it was unlikely that readers with such special knowledge lived in the area of the newspaper's circulation. That being so, the claimant was bound to identify readers whom he alleged knew of those facts.
Scarman LJ said that sometimes facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely on a presumption or inference that some readers will have known them, and "there may well be cases in which it would not be necessary to plead more than the fact of publication by a newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts.
For instance, the facts may be very well known in the area of the newspaper's distribution - in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo."
Lord Denning MR stated that it was "just possible" that someone "had jumped to the conclusion that before he left the Salford diocese, and while still a priest, he [the claimant] had married and fathered a child. But such a person would be so rare and so exceptional that the case on legal innuendo would not stand a chance unless that person was called".
1 Citers



 
 Rustenburg v PanAm; 1977 - [1977] 1 Lloyd's Rep 564
 
Pearson v Naydler [1977] 1 WLR 899; [1977] 3 All ER 531
1977

Megarry V-C
Costs, Litigation Practice
That the statute required it to be likely that a company might find it difficult to pay costs before allowing a requirement for security for costs, indicated that an order may be expected to cause difficulty. However the court will not allow an impoverished company to use its inability to pay costs as a weapon against a more prosperous company.
1 Citers


 
Denne v Denne (1977) CAT 4743
1977


Costs, Litigation Practice
Where the parties, having settled their case, agreed for a costs judge to fix the costs, there was no appeal from his judgment.
1 Citers


 
The Ampthill Peerage Case [1977] AC 547
1977
HL
Lord Wilberforce, Lord Simon of Glaisdale
Litigation Practice, Children
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial. Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: "The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth . . and these are cases where the law insists on finality."
However: "For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time, so the law still more exceptionally allows judgments to be attacked on the ground of fraud."
Having a particular status in law means "the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities." (Lord Simon of Glaisdale)

Lord Wilberforce considered the status of legitimacy: "There can hardly be anything of greater concern to a person than his status as the legitimate child of his parents: denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, his succession to a title. It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question."
1 Citers


 
Lambert v Mainland Market Ltd [1977] 1 WLR 825
1977
CA
Lawton LJ
Litigation Practice
A stay which is not a permanent stay does not bring the action to an end; the action becomes "static" but can be restarted at any time. However, in the normal way the Courts seek to enforce settlement agreements and so bring finality to litigation and will only lift a stay in exceptional circumstances
1 Citers



 
 Birkett v James; HL 1977 - [1978] AC 297; [1977] 2 All ER 801; [1977] 3 WLR 38

 
 Riddick v Thames Board Mills Ltd; CA 1977 - [1977] 3 All ER 677; [1977] 3 WLR 63; [1977] QB 881
 
Woodward v Hutchins [1977] 2 All ER 751; [1977 1 WLR 760
1977
CA
Lord Denning MR, Bridge LJ, Lawton LJ
Litigation Practice, Media, Information
An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group's press agent, the defendant's role had been to see that the group received favourable publicity. However, after parting company, amicably, with the group, the defendant disclosed "no doubt, for a very considerable reward" to the Daily Mirror "secrets" about the group, including episodes of allegedly discreditable nature involving drink, sex and other matters. Held: (ex tempore) The injunction was discharged. The group had sought publicity, giving one view of themselves. Where justification is to be pleaded to a defamation claim then an interim injunction to restrain publication will not be granted.
Bridge LJ said: "It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy which shows them in an unfavourable light." and "If the defendants cannot in due course make good that claim [viz a summary of the stories that they wished to publish], it is quite clear that the plaintiffs will recover very considerable damages for libel, to say nothing of any damages they may recover for breach of confidentiality. But if the defendants substantiate the claim, it is clear that the plaintiffs will recover no damages in libel; and I think that they could only recover nominal damages for the breach of confidentiality, if there was one."
Lawton LJ said: "The defendants have intimated that in so far as there is a claim for damages for libel there will be a plea of justification. Sir Peter, on behalf of the plaintiffs, has accepted, in the circumstances of this case at any rate, that it is pointless to make submissions to the court that his clients should be granted an injunction to restrain further publication of the libel.
What then is the position? The allegation of confidentiality is interwoven with the claim for damages for libel and, once that is understood, it seems to me that the balance of convenience is entirely on the side of allowing the publication to go on. The defendants should know and possibly do that, if they fail in their plea of justification, the damages are likely to be heavy. They may be heavier still by reason of the fact that the offence - because that is what libel is - has been made worse by the circumstances in which Mr. Hutchins has come to reveal what he knows about the plaintiffs. I find it impossible in this case to extricate the libel aspect from the confidentiality aspect. In those circumstances, it seems to me that it would be wrong to allow this injunction to continue."
Lord Denning MR said: 'If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidentaial information it is a question of balancing the public interest in maintaining the confidence agaiinst the public nterest in knowing the truth."
and "There is a parallel to be drawn with libel cases. Just as in libel, the courts do not grant an interlocutory injunction to restrain publication of the truth or of fair comment. So also with confidential information. If there is a legitimate ground for supposing that it is in the public interest for it to be disclosed, the courts should not restrain it by an interlocutory injunction, but should leave the complainant to his remedy in damages. Suppose that this case were tried out and the plaintiffs failed in their claim for libel on the ground that all that was said was true. It would seem unlikely that there would be much damages awarded for breach of confidentiality. I cannot help feeling that the plaintiffs' real complaint here is that the words are defamatory: and as they cannot get an interlocutory injunction on that ground, nor should they on confidential information."
1 Citers



 
 D v National Society for the Prevention of Cruelty to Children; HL 2-Feb-1977 - [1978] AC 171; [1977] 2 WLR 201; [1977] 1 All ER 589; [1977] UKHL 1

 
 Gouriet v Union of Post Office Workers; HL 26-Jul-1977 - [1978] AC 435; [1977] UKHL 5; [1977] 3 All ER 70
 
Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345; [1977] UKHL TC_51_708; [1977] 3 All ER 996; [1977] STC 397; [1977] TR 217; 51 TC 708
9 Nov 1977
HL
Lord Wilberforce, Lord Salmon and Lord Keith
Litigation Practice, Constitutional, Income Tax
Income tax - Schedule D, Cases III and VI - Payments of interest and ground rent incurred when property was being developed - Whether capitalised or paid out of profits or gains brought into charge to tax - Income Tax Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 10), j. 170.
The House was invited to depart from its own precedent set eleven years before. Lord Wilberforce said: "There is therefore nothing left to the appellant but to contend - as he frankly does - that the 1965 decision is wrong. This contention means, when interpreted, that three or more of your Lordships ought to take the view which appealed then to the minority. My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view, which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate, two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it."
1 Cites

1 Citers

[ Bailii ]
 
Rasu Maritima v Pertamina [1978] QB 644
1978
CA
Lord Denning MR
Litigation Practice
Foreign attachment as an interlocutory process is the origin of the Mareva injunction
1 Citers


 
Transmountana Armadora v Atlantic Shipping [1978] 1 Ll R 391
1978

Donaldson J
Litigation Practice, Arbitration
Donaldson J discussed the nature of a sealed offer in arbitration proceedings: "Although the respondents' offer of settlement has been referred to as an 'open offer', this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, 'without prejudice', 'sealed' and 'open'.
A 'without prejudice' offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement.
A 'sealed offer' is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties' claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them."
1 Citers


 
Cannock Chase District Council v Kelly [1978] 1 WLR
1978
CA
Megaw LJ
Litigation Practice, Natural Justice
Megaw LJ set out a definition of 'bad faith': "I would suggest - that it seems to me that an unfortunate tendency has developed of looseness of language in the respect - that bad faith or, as it is sometimes put, "lack of good faith," means dishonesty, not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as pseudonym of honest though mistaken [conclusion], taking into consideration of a factor which in law is irrelevant."
1 Citers


 
James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141
1978
HL
Lord Wilberforce, Lord Salmon, Lord Dilhorne
Litigation Practice, Transport
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of 30,000 pounds became payable. The plaintiffs claimed to recover the value including the duty, under Article 23.2 of the CMR. Held: The liability to excise duty constituted 'other charges' under Article 23.4. The English text of the convention was incorporated through a schedule. A parallel Fench text had equal authenticity. The process of statutory interpretation required the court directly to interpret the English text of the convention while recognising that another authentic text existed. The court could interpret the statute on broad principles of general acceptation, assisted if need be by reference to the French text, without the need for a preliminary test of ambiguity.
Lord Wilberforce said:"I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo, Mango and Co Ltd [1932] AC 328, per Lord Macmillan, at p 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v Bradbeer [1975] 1 WLR 1204, 1206. There is no need to impose a preliminary test of ambiguity."
Customs and Excise Act 1952 85
1 Cites

1 Citers


 
Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231; [1978] 1 All ER 948
1978
HL
Lord Simon of Glaisdale, Lord Scarman, Viscount Dilhorne
Litigation Practice
Where the words of a statute are clear, it is not open to the court to limit, change or disregard that meaning on the ground that the result of the legislation as drafted would be anomalous or absurd.
Lord Simon of Glaisdale said as to an argument based on the anomaly of the result of a statutory interpretation: "A court would only be justified in departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such an anomaly, could not have been prepared to accept it in the interests of a supervening legislative objective; (3) the anomaly can be obviated without detriment to the legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly." and "But it is essential to bear in mind what the court is doing. It is not declaring Parliament has said X, but it obviously meant Y, so we will take Y as the effect of the statute. Nor is it declaring Parliament has said X having situation A in mind, but if Parliament had had our own forensic situation B in mind, the legislative objective indicates that it would have said Y. So we will take Y as the effect of the statute as regards B. What the court is declaring is Parliament has used words which are capable of meaning either X or Y, although X may be the primary natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words. So, too, when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct, these should coincide, so that if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory objective, justice, anomaly, etc) which throw light on what the draftsman meant to say."
Lord Scarman said: "Mr. Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the "anomalies" which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat . . If the words used by Parliament are plain, there is no room for the "anomalies" test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake."
Viscount Dilhorne said: "It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" (Coke 4 Inst. 330).
If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature.
The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8 (2) read as if it said: "who also took part and at the date of the dismissal were taking part in that action." As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold & Co. [1910] A.C. 409, 420. "we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" Said Lord Loreburn L.C. in Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C. 444, 445.
. . The existence of anomalies, if they exist, cannot limit the meaning to be attached to clear language in a statute."
1 Citers



 
 Cretanor Maritime Co Ltd v Irish Marine Management Ltd; CA 1978 - [1978] 1 WLR 966; [1978] 3 All ER 164; (1978) 1 Lloyds Rep 425

 
 Notham v London Borough of Barnet; CA 1978 - [1978] 1 All ER 1243
 
Chocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd [1978] RPC 287
1978

Megarry V-C
Litigation Practice
Megarry V-C said that the mere failure to use the expression 'without prejudice' is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege which prevents the acknowledgments from being relied upon for the purposes of the Act.
Megarry V-C said: "From the authorities put before me by Mr Prescott, it seems plain that the courts favour the protection of discussions which take place between actual or prospective litigants with a view to avoiding the expense and burden of litigation, and are very ready to hold that discussions made with this purpose are inadmissible in evidence. Men ought to be able to attempt to "buy their peace" without prejudicing their positions if the attempt fails and hostilities break out or continue. The mere failure to use the expression "without prejudice" does not conclude the matter. The question is whether there is an attempt to compromise actual or impending litigation, and whether from the circumstances the court can infer that the attempt was in fact to be covered by the "without prejudice" doctrine."
1 Citers


 
Loose v Williamson [1978] 3 All ER 89; [1978] 1 WLR 639; (1978) 122 SJ 212
1978


Litigation Practice

1 Cites


 
Rasu Maritima SA v Perusahaan (the Pertamina) [1978] 1 QB 644
1978
CA
Lord Denning MR
Litigation Practice
Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction.
Supreme Court of Judicature (Consolidation) Act 1925 45
1 Cites

1 Citers


 
Smith v Inner London Education Authority [1978] 1 All ER 411
1978
CA
Lord Denning MR, Browne LJ
Litigation Practice
Lord Denning MR doubted the applicability of the criteria in American Cyanamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the balance of convenience.
Browne LJ said: "where a defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the "special factors" affecting the balance of convenience which are referred to by Lord Diplock in American Cynamid Co v. Ethicon Ltd [1975] 1 All ER 504 at 511, [1975] AC 396 at 408."
1 Cites

1 Citers


 
B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181; [1978] 3 WLR 624
1978
CA
Dunn LJ
Family, Litigation Practice
The wife applied for ancillary relief, and sought disclosure from a third party. Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. "Custody" in RSC Ord 24 was held "to refer to documents which are in the physical holding of a party but not in his personal capacity, rather qua company director/agent or similarly".
Dunn LJ said: "It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband's financial position . . She may . . know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division.
Applications for such discovery cannot be described as "fishing" for information, as they might be in other divisions. The wife is entitled to go "fishing" in the Family Division within the limits of the law and practice."
1 Citers


 
In re Westinghouse Uranium Contract [1978] AC 547; [1978] 1 All ER 434
1978
HL
Lord Wilberforce, Lord Fraser
Litigation Practice
“The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested” Lord Fraser said: “in judging the nature of the letters rogatory as a whole in the court must look at them in the unamended form in which they were received by the American Court” A 'fishing expedition' is clearly impermissible in an application of request under the Act. The court supported the distinction between "a process by way of discovery and testimony for that purpose" and "testimony for the trial itself": "which it is in fact is not to be determined by the drafting of Westinghouse’s lawyers but objectively by the nature of the testimony sought. The fact that any evidence obtained is intended to be put in at the trial is quite consistent with the inquiry extending (impermissibly) to trains of inquiry which might produce such evidence."
Evidence (Proceedings In Other Jurisdictions) Act 1975
1 Cites

1 Citers


 
Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH Court of Appeal transcript 816
2 Jan 1978
CA
Templeman LJ
Litigation Practice, Equity
The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts on affidavits and directed that one of them should file an affidavit of documents. The defendant appealed. Held. The appeal failed. Templeman LJ said: "The court of equity has never hesitated to use the strongest power to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain."
1 Citers



 
 Davis v Johnson; HL 2-Jan-1978 - [1979] AC 264; [1978] 1 All ER 1132; [1978] UKHL 1; [1978] 2 WLR 553
 
London and County Securities Ltd v Caplin Unreported, 26 May 1978
26 May 1978
ChD
Templeman J
Litigation Practice
The court made a Mareva order with ancillary disclosure orders for the purpose of enabling the plaintiffs to trace property acquired by the defendant and so take steps to seize that property if it derived from their assets.
1 Citers


 
Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) [1981] Comm LR 138
11 Dec 1978

Mustill J
Litigation Practice, Legal Professions
The court considered disclosure of a legally privileged note of an interview: "I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood." and "Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. . . I would describe that as the cherry picking aspect." and "The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application."
1 Cites

1 Citers



 
 Quazi v Quazi; HL 1979 - [1979] 3 All ER 897 HL(E); [1979] 3 WLR 833; [1980] AC 744
 
Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778
1979

Crane J
Employment, Litigation Practice
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending. Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: "Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
1 Citers


 
Prudential Assurance Co Ltd v Newman Industries Ltd [1979] 3 All ER 838; [1981] Ch 29
1979
ChD
Vinelott J
Litigation Practice
Members of the defendant company had approved in general meeting, of an acquisition of the assets of another company in which its directors were substantially interested. The shareholders' approval was given on the basis of a circular. The action was commenced against the directors by the Prudential as a minority shareholders' action alleging that the circular was tricky and misleading. It sought damages for conspiracy. Held: Vinelott J said: "These cases, in my judgment, establish two propositions. First, no order will be made in favour of a representative plaintiff if the order might in any circumstances have the effect of conferring on a member of the class represented a right which he could not have claimed in a separate action or of barring a defence which the defendant could have raised in such proceedings. Secondly, no order will be made in favour of a representative plaintiff unless there is some element common to the claims of all members of the class which he purports to represent."
He also said:"The second condition is that there must be an "interest" shared by all members of the class. In relation to a representative action in which it is claimed that every member of the class has a separate cause of action in tort, this condition requires, as I see it, that there must be a common ingredient in the cause of action of each member of the class. In the present case that requirement is clearly satisfied." and
"As drafted the order which the plaintiff seeks in its representative capacity is for a declaration that the plaintiff in its personal capacity as a shareholder in Newman Industries and on behalf of itself and all other shareholders in Newman Industries who like the plaintiff have suffered damage is entitled to damages against the defendants, Bartlett and Laughton, for conspiracy. The practical effect of such a declaration would, it seems to me, be no greater and no less than the effect of declarations, first, that the circular was tricky and misleading; secondly, that the individual defendants conspired to procure its circulation in order to procure the passing of the relevant resolution; and thirdly, that in so doing they conspired either to injure the plaintiff and the other shareholders at that date or to commit an unlawful act, or to induce a breach by the first defendant company of its contractual duty to the shareholders. It would, I think, be better that those declarations, which constitute the common element of any claim by any member of the class for damages for conspiracy, should be so spelt out. Further, I can see no reason for defining the class of shareholders of the first defendant company at July 29, 1975, as being those "who like the plaintiff have suffered damage and are entitled to damages." The words I have cited appear to me to be unnecessary and undesirable. The members of the class who share a common interest in obtaining the declarations I have outlined are shareholders other than the second and fourth defendants as at July 29. A person coming within that class will be entitled to rely on the declarations as res judicata, but will still have to establish damage in a separate action."
1 Citers


 
Jefferson Ltd v Bhetcha [1979] 1 WLR 898
1979
CA
Megaw LJ
Litigation Practice
The plaintiffs brought a claim to recover monies appropriated by a former employee who was also facing prosecution for offences in connection with the same matters. The defendant sought a stay of the application for summary judgement. Held: The application for summary judgement should proceed. The issue of a stay to prevent civil proceedings when criminal prosecutions arising out of the same events are also pending is a matter of discretion to be exercised by reference to the competing considerations. It is not a matter of a rule. The court had a discretion to stay the civil proceedings or to adjourn an application for summary judgment having regard to the concurrent criminal proceedings. One factor to be taken into account was whether there was "a real danger of causing injustice in the criminal proceedings", for example if publicity might influence potential jurors in the criminal proceedings or if disclosure of the defence might enable prosecution witnesses to prepare a fabrication of evidence or might lead to interference with witnesses.
1 Cites

1 Citers


 
Minister of National Revenue v Coopers and Lybrand [1979] 1 SCR 495
1979

Dickson J
Litigation Practice
(Supreme Court of Canada) The court sought to define the distinctive characteristics of a quasi-judicial act: " (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached? (2) Does the decision or order directly or indirectly affect the rights and obligations persons? (3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to many individual cases rather then, for example, the obligation to implement social and economic policy in a broad sense? These are all factors to be weighed and evaluated, no one of which is necessarily determinative. . . In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those . . affected thereby. . . The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process. The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating [to] those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially".
1 Citers


 
Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645
1979
CA
Lord Denning MR, Mustill J
Litigation Practice
The court gave guidelines for the granting of Mareva injunctions as follows: "(i) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. . (ii) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant. (iii) The plaintiff should give some grounds for believing that the defendant has assets here . . (iv) The plaintiff should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied. (v) The plaintiff must, of course, give an undertaking in damages -- in case he fails in his claim or the injunction turns out to be unjustified in a suitable case this should be supported by a bond or security: and the injunction only granted on it being given, or undertaken to be given".
Mustill J noted that such applications were being made at a rate of about twenty per month.
1 Cites

1 Citers



 
 NWL Limited v Woods; 1979 - [1979] 1 WLR 1294; [1979] 3 All ER 614
 
NWL Ltd v Woods [1979] 1 WLR 1294; [1979] ICR 867; [1979] 3 All ER 614
1979
HL
Lord Scarman, Lord Diplock
Employment, Litigation Practice
The phrase "trade dispute" was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: "It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses—a legal point counter-point which has been more productive of excitement than of harmony."
Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations.
Lord Diplock spoke of the basis for granting interlocutory injunctions: ". . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. . ."

Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction has been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid v. Ethicon Limited. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other".
And
"Where ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."
1 Cites

1 Citers



 
 Floor v Davis (Inspector of Taxes); HL 1979 - [1980] AC 695; [1979] 2 WLR 830; [1979] 2 All ER 677
 
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
1979

Deane J
Commonwealth, Litigation Practice
(Federal Court of Australia) Deane J interpreted a statute using the word 'substantial' saying that it "is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision."
1 Citers


 
Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA [1979] AC 210; [1979] 3 WLR 818; [1979] 3 All ER 803
1979
HL
Lord Diplock
Arbitration, Litigation Practice
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed the company to have no other assets from which to meet the hoped-for damages award than the fund in England. No proprietary claim was, or could have been, made by the claimant to the fund. Held: The Court could not grant interlocutory relief when the substantive proceedings were taking place abroad. English courts had no jurisdiction to grant a freezing injunction in a case in which there was no claim for substantive relief before the English courts.
Lord Diplock said: "A right to obtain an interlocutory judgment is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment of the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction." and ""To come within the sub-rule the injunction sought in the action must be part of the substantive relief to which the plaintiff's cause of action entitles him; and the thing that it is sought to restrain the foreign defendant from doing in England must amount to an invasion of some legal or equitable right belonging to the plaintiff in this country and enforceable here by a final judgment for an injunction." and
“The general rule is that the jurisdiction of the English Court over persons is territorial. It is restricted to those upon whom its process can be served within the territorial limits of England and Wales. To this general rule there are some exceptions. These are now to be found in Order 11 of the Rules of the Supreme Court which have statutory force by nature of section 99 of the Supreme Court of Judicature (Consolidation) Act 1925. Order 11 permits the High Court to grant leave to a plaintiff to serve its process upon a person outside the territorial limits of England and Wales in those cases, but only in those cases, that are specified in sub-rules (a) to (o) of rule 1(1) or in rule 2 . .
In several of the cases specified in sub-rules (a) to (o) the jurisdiction exercisable over foreigners by the High Court is wider than that which is recognized in English law as being possessed by courts of foreign countries. These are ‘exorbitant’ jurisdictions which run counter to the normal rules of comity among civilized nations. For this reason it has long been held that where there is any room for doubt as to their meaning the provisions of the sub-rules are to be strictly construed in favour of the foreigners : The Hagen [1908] P.189, 201 per Farwell L.J. and it is in my view equally well settled now that it is not permissible in any action commenced by service of process on a person out of the jurisdiction to litigate any claim that does not fall within one or other of sub-rules (a) to (o).”
The purpose of a freezing order is "…to ensure that there will be a fund available within the jurisdiction to meet any judgment obtained by a Plaintiff in the High Court against a Defendant who does not reside within the jurisdiction and has no place of business here."
As to the 1925 Act: "That sub-section, speaking as it does of interlocutory orders, presupposes the existence of an action, actual or potential, claiming substantive relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary. This factor has been present in all previous cases in which Mareva injunctions have been granted …. it is not present in this."
Rules of the Supreme Court Order 11 Rule 1 - Judicature Act 1925 45(1)
1 Cites

1 Citers



 
 Jones v Wrotham Park Settled Estates; HL 1979 - [1980] AC 74; [1979] 1 All ER 286; [1979] 2 WLR 132
 
Singh v Nazeer [1979] Ch 474
1979

Sir Robert Megarry VC
Land, Litigation Practice
Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it .
1 Citers


 
Harmony Shipping Co SA v Saudi Europe Line Limited ('The Good Helmsman') [1979] 1 WLR 1380
1979
CA
Lord Denning MR
Litigation Practice, Evidence
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial. Held: There is no property in an expert witness and any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy. The plaintiff could not prevent the defendant from adducing the evidence of the expert, who could properly be made the subject of a subpoena to appear at trial.
Lord Denning MR said: ""So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting facts from him and from calling him to give evidence or from issuing him with a subpoena . . There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so."
and "Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned . . subject to that qualification it seems to me that an expert witness falls into the same position as a witness to fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts – excluding, as I have said, any of the other communications which passed when the witness was being instructed or employed by the other side."
and "The expert witness can be seen beforehand and give a proof on these limited matters I have mentioned and give evidence accordingly."
1 Citers


 
George v Secretary of State for the Environment (1979) 77 LGR 689; (1979) 38 P & CR 609; (1979) 250 EG 339
1979
CA
Lord Denning MR, Cumming-Bruce LJ
Natural Justice, Judicial Review, Litigation Practice
The claimant challenged a decision made under the 1946 Act. Held: It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review.
Lord Denning MR said: "I also accept the submission that there can be no such thing as a ‘technical’ breach of the rules of natural justice, since the concept of natural justice is not concerned with the observation of technicalities but with matters of substance.
The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice.
One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error that has been made . ."
Cumming-Bruce LJ described the kind of situations within judicial review proceedings, where which cross-examination should be ordered: "The kind of situations in which I would expect cross-examination to be ordered is where the affidavits of one party are so unsatisfactory that, although they cannot be regarded without cross-examination as worthless evidence, they cannot be confidently accepted as evidence of fact without cross-examination. On the facts of this case . . I would have thought, on reading the affidavits, that there was an overwhelming inference that the evidence was both ingenuous and ingenious and so suspicious that, without cross-examination, it should anyway be rejected. If however, Sir Douglas Frank was not prepared, as he was not, to go as far as that, it was in my view, his duty to admit the cross-examination in order to determine whether the evidence was unreliable."
Lord Denning MR gave three reasons for the judicial reluctance to order cross-examination in cases of judicial review: "(i) that because the affidavits will usually speak as to what took place before a judicial or quasi-judicial body they may have to be sworn by a planning inspector or a magistrate, or someone of that kind. Since it is undesirable that such a person should be subjected to cross-examination, the applicant should not be liable to cross-examination either;
(ii) experience shows that on procedural questions arising on judicial review there is very little conflict on the affidavits; and
(iii) if cross-examination is permitted there will be a temptation to try and undermine the actual findings of the inferior body."
Acquisition of Land (Authorisation Procedure) Act 1946
1 Citers


 
Iraqi Ministry of Defence v Arcepey Shipping "The Angel Bell" [1979] 2 Lloyd's Rep 491; [1981] 1 QB 65
1979

Donaldson J, Robert Goff J
Transport, Litigation Practice
Creditors of the defendant who was subject to a Mareva injunction applied to the court to authorise the repayment of a loan out of monies otherwise subject to the order. Held: The purpose of a freezing order is to avoid dissipation of a defendant's assets in order to avoid a judgment, it is only bona fide debts in the ordinary course of business of a defendant whose assets are frozen that will be permitted to be paid out, including debts which are not themselves enforceable.
Robert Goff J said: "Mr. Hobhouse submitted that the purpose of the Mareva jurisdiction was to freeze a foreign defendant's assets in this country to ensure that there is a fund available in this country from which the plaintiff will be able to satisfy a judgment. In support of this he relied in particular on the form of the order usually made in these cases which restrains the defendant from dealing with his assets within the jurisdiction and from removing his assets from the jurisdiction. I do not, however, see that the usual form of the order as such assists his argument. As was made plain by Mustill J. in the Third Chandris case, the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction."
and "All the interveners are asking is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do."
1 Citers


 
Tilling v Whiteman [1979] UKHL 10; [1980] AC 1; (1979) 250 EG 51; (1979) 38 P & CR 341; [1979] 2 WLR 401; [1979] 1 All ER 737
8 Mar 1979
HL
Lord Wilberforce, Lord Diplock, Lord Salmon, Lord Fraser of Tullybelton, Lord Scarman
Housing, Litigation Practice
The plaintiff owner of a property had commenced proceedings to recover the property from the defendant tenants. The plaintiff then applied to have a particular provision of the 1968 Act interpreted as a preliminary issue of law under O 33 r 2. Held: The House considered the risks of split trials. Lord Scarman said: "preliminary points of law are too often treacherous shortcuts. Their price can be, as here, delay, anxiety, and expense."
Lord Wilberforce said that the Judicial Committee had: "often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional."
Rent Act 1968
[ Bailii ]

 
 de Lasala v de Lasala; PC 4-Apr-1979 - [1980] AC 546; [1979] UKPC 10; [1979] 2 All ER 1146; [1980] FSR 443; [1979] 3 WLR 390

 
 Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias; HL 1-Nov-1979 - [1979] ICR 921; [1979] 3 All ER 673; [1980] AC 1028; [1979] 3 WLR 762; [1979] UKHL 9
 
Burmah Oil Ltd v Governor and Company of the Bank of England and another [1980] AC 1090; [1979] UKHL 4
1 Nov 1979
HL
Lord Edmund-Davis, Lord Keith of Kinkel
Litigation Practice
The House considered an application for discovery of sensitive documents.
Lord Edmund-Davis said: "A judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?" and "But it has been suggested that the position is otherwise where the 'class' claim is not challenged. I see no reason why this should be so once it is postulated that the 'withheld' class documents are 'likely' to contain material substantially useful to the party seeking discovery. That qualification is necessary for what is no more that a 'fishing expedition' ought not to be advanced by the judge's having a peep to see whether they contain an attractive catch."
Lord Keith of Kinkel said: "There can be no doubt that the court has the power to inspect the documents privately. This was clearly laid down in Conway v Rimmer . . I do not consider that the exercise of such power, in cases responsibly regarded by the court as doubtful, can be treated as itself detrimental to the public interest."
[ Bailii ]

 
 London and Clydeside Estates v Aberdeen District Council; HL 8-Nov-1979 - [1980] SC (HL) 1; [1980] 1 WLR 182; [1979] UKHL 7

 
 Levy v Levy; 9-Nov-1979 - Unreported 9th November 1979
 
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