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Litigation Practice - From: 1980 To: 1984

This page lists 132 cases, and was prepared on 02 April 2018.

 
In re Phelps [1980] 1 Ch 275
1980
CA
Buckley LJ
Litigation Practice
It is not only permissible but necessary to have regard to cross-headings in statutes.
1 Citers


 
Iraqi Ministry of Defence and Others v Arcepey Shipping Co SA, The Angel Bell [1981] 1 QB 65; [1980] 2 WLR 488; [1980] 1 All ER 480
1980

Robert Goff J
Banking, Litigation Practice
The court considered whether a defendant should be allowed to pay his debts as they fell due despite an asset freezing order. Held: The Mareva jurisdiction should not ”improve the position of claimants”. Rather, it should prevent the injustice of a defendant removing his assets from the jurisdiction which may have otherwise been available to satisfy a judgment.
Robert Goff J said: "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 . . It does not make commercial sense that a party claiming unliquidated damages should, without himself proceeding to judgment, prevent the defendant from using his assets to satisfy his debts as they fall due and so put him in the position of having to allow his creditors to proceed to judgment with consequent loss of credit and of commercial standing . . All the interveners [the defendant’s creditors who had lent money to the defendant for the purpose of purchasing ships, including the ship in the case at hand] are asking [in their application to vary the injunction so that they could, as equitable mortgagees of the defendant’s ship as well as assignees of the insurance policies of the said ship, be paid the proceeds of these policies as repayment of the debt due under the loan] 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


 
Trendtex Trading Corporation v Credit Suisse [1980] QB 629
1980
CA
Denning, Oliver LJJ
Litigation Practice
A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it. Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal. It is perfectly legitimate today for one person to support another in bringing or resisting an action - as by paying the costs of it - provided that he has a legitimate and genuine interest in the result of it and the circumstances are such as reasonably to warrant his giving support.
Oliver LJ discussed the history of the law of champerty in some detail, saying: "Maintenance and champerty . . have, since 1967, ceased to [attract criminal pemalties] . . Only in the field of contractual rights and duties do they still cast their shadow … and even in this field the trend of all the recent authorities has been to foreshorten the shadow. . There is, I think a clear requirement of public policy that officers of the court should be inhibited from putting themselves in a position where their own interests may conflict with their duties to the court by agreement, for instance, of so called 'contingency fees'."
Criminal Law Act 1967 14(2)
1 Cites

1 Citers


 
Tilling v Whiteman [1980] AC 1
1980
HL
Lord Wilberforce, Lord Scarman
Litigation Practice
Lord Scarman said: "Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense."
Lord Wilberforce said: "The judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house as a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have 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."
1 Citers


 
Eng Mee Yong v Letchumanan [1980] AC 331
1980

Lord Diplock
Litigation Practice
Lord Diplock said: "Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as me "may think just" the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth."
1 Citers


 
Shah v Givert (1980) 124 SJ 513
1980


Landlord and Tenant, Litigation Practice
If a landlord seeks to recover possession of property under Order 113, he must take the risk that if the defendant raises an arguable case that he has a tenancy, the matter must go to trial.
1 Citers



 
 Bankers Trust v Shapiro; CA 1980 - [1980] 1 WLR 1274; [1980] 3 All ER 353
 
Post Office v Hampshire County Council [1980] QB 124
1980

Geoffrey Lane LJ
Litigation Practice
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake's Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a hundred years and it had probably never applied to tort cases. Held. The court considered the doctrine of circuity of action "it is no good trying to get something which immediately afterwards you are going to have to hand back" and applied it.
1 Citers


 
Farrell (Formerly McLaughlin) v The Secretary of State for Defence [1980] 1 WLR 172; [1980] 1 All ER 166
1980
HL
Viscount Dilhorne, Lord Edmund-Davies
Litigation Practice, Police
The purpose of pleadings is to enable the opposing party to know the case against him. Lord Edmund-Davies said that: "It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions." and "It is to define the issues and inform the parties in advance what they have to meet and at the same time enable them to take the necessary steps to deal with it."
Viscount Dilhorne said that section 3(1) of the 1967 Act may provide a defence to a civil action for assault or battery.
Criminal Law Act 1967 3(1)
1 Citers


 
A v C (Note) [1981] QB 956; [1980] 2 All ER 347
1980
ChD
Robert Goff J
Litigation Practice, Equity
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to trace the sum of £383,872 paid under a mistake of fact induced by fraud, into an account with a further defendant, a bank. That was the only claim against the bank. They had obtained a Mareva Injunction ex parte, against the fraud defendants, and an injunction restraining them all from disposing of the sum of £383,872 if a lesser sum stood to their credit in accounts with the bank. The court was asked what orders could be made to assist the tracing, including disclosure of bank accounts wherever held. Held: The court may make orders with the purpose of ascertaining the whereabouts of missing trust funds, even though a Mareva order over bank accounts generally could be oppressive. However without that information, the plaintiff may be unable to volunteer the undertakings expected of him. In limited cases where the court decides to make Mareva orders, it may make such disclosure orders as are necessary to ensure that the Mareva jurisdiction is properly and effectively exercised.
An ancillary disclosure order, made in conjunction with an asset preservation order, relies on the same source of jurisdiction as supports the asset preservation order.
Goff J distinguished between Mareva and conventional interlocutory injunctions in aid of a proprietary claim to a fund, holding that the plaintiffs were entitled to an injunction to restrain the defendants from disposing of the trust fund or what remained of it, quite apart from the Mareva jurisdiction.
1 Cites

1 Citers


 
Barclay-Johnson v Yuill [1980] 1 WLR 1259
1980


Litigation Practice
The jurisdiction to make an asset freezing injunction applies though the defendant is not a foreigner or foreign based. Its essence is to reduce the risk of the defendant removing his assets from the jurisdiction and so stultifying any judgment given by the courts in the action.
1 Citers


 
Rank Film Distributors v Video Information Centre [1980] 2 All ER 273; [1982] AC 380
1980
CA
Lord Justice Templeman, Lord Russell of Killowen
Litigation Practice
The plaintiff film companies accused the defendants of pirating their films. They obtained Anton Piller orders which required the defendants to permit the plaintiffs to enter their premises to inspect and remove any unauthorised films, and three defendants were to disclose:
(a) cassette supplier and customer details;
(b) invoices; and
(c) the whereabouts of pirate cassettes where known.
Peremptory orders for discovery and interrogation required instant obedience and the defendants were informed by the Penal Notice on the order that disobedience would expose them to penal consequences. Held: The order was extraordinary, and the party interrogated had no opportunity for legal advice before deciding whether to comply. Accordingly those parts of the orders requiring disclosure contrary to the well-established principle of privilege against self-incrimination were expunged.
Lord Russell of Killowen said that he would welcome legislation along the lines of section 31 of the Theft Act 1968: "[i]nasmuch as the application of the privilege in question can go a long way in this and other analogous fields to deprive the owner of his just rights to the protection of his property".
1 Citers



 
 Gaskin v Liverpool City Council; CA 1980 - [1980] 1 WLR 1549
 
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
1980
HL
Lord Diplock
Company, Litigation Practice
In the absence of a presently enforceable right there was nothing in the court rules for discovery to compel a party to take steps that would enable that party to acquire such a right in the future. Documents of a subsidiary were not in the "power" of its parent company for the purposes of disclosure in litigation, simply by virtue of the latter's ownership and control of the group. Lord Diplock defined the term "power" to mean: "a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future."
It is the duty of each director to form an independent judgment as to whether acceding to a shareholder's request is in the best interests of the company.
1 Citers


 
Liff v Peasley [1980] 1 WLR 781; [1980] 1 All ER 623
1980
CA
Brandon LJ, Stephenson LJ
Litigation Practice, Limitation
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. Where a defendant is added under Ord.15 r.6 there is no relation back so as to treat the added party as a defendant on any date earlier than he was in fact joined. Two reasons are used : 'The first basis is that, if the addition were allowed, it would relate back, so that the action would be deemed to have been begun as against the person added, not on the date of amendment, but on the date of the original writ; that the effect of such relation back would be to deprive the person added of an accrued defence to the claim on the ground that it was statute-barred; and that this would be unjust to that person. I shall refer to this first basis of the rule of practice as the “relation back” theory. The second and alternative basis for the rule is that, where a person is added as defendant in an existing action, the action is only deemed to have been begun as against him on the date of amendment of the writ; that the defence that the claim is statute-barred therefore remains available to him; and that, since such defence affords a complete answer to the claim, it would serve no useful purpose to allow the addition to be made. I shall refer to this second and alternative basis of the rule of practice as the “no useful purpose” theory.' As to which reason was correct, and referring to the rule in Sneade v Wotherton Barytes & Lead Mining Co as to relation back: 'This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas or averments made between existing parties in respect of a cause or causes of action already raised. Where, however, the amendment concerned involves the addition of a new party or the raising of a new cause of action, it appears to me to be unrealistic and contrary to the common sense of the matter to treat it as relating back in the same way.'
1 Cites

1 Citers


 
Ealing London Borough Council v El Isaac [1980] 1 WLR 932
1980
CA
Templeman LJ
Contract, Litigation Practice
Templeman LJ said: "I do not for myself understand how a debt payable with interest until actual repayment can be merged in a judgment without interest or with a different rate of interest payable thereafter."
1 Citers


 
University of Essex v Djemal and others [1980] 1 WLR 1301
1980
CA
Buckley LJ
Litigation Practice, Land
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just prior to the hearing before the judge the students vacated Level Six but left behind a note threatening "further direct action" against the university unless their demands were met. The university proceeded with its application but the judge refused to make an order for possession other than in relation to Level Six. The words of Order 113, R.S.C. 1965, restricted the court's jurisdiction to making an order for possession of such part of the premises as was being or had been wrongly occupied. The university's appeal was allowed and an order was substituted for possession.
Buckley LJ said: "I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner's property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case. In the present case there was, when the matter was before the judge, a threat to take what is described as "further direct action", which presumably meant similar action to the action which had already been taken, action which might be taken in respect of any part of the university property. In those circumstances it would, in my judgment, have been open to the judge to have made an order extending to the whole of the university property, or he might have made an order extending to particular parts, such as the administrative offices, of the university property. In my judgment he was in error in thinking that he was bound, by the terms of R.S.C., Ord. 113, to restrict his order to that particular part of the university property of which the students were then in actual adverse possession."
Rules of the Supreme Court Orde 113
1 Citers


 
Deweer v Belgium 6903/75; (1980) 2 EHRR 239; [1980] ECHR 1
27 Feb 1980
ECHR
H MOSLER, President
Human Rights, Litigation Practice
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid. Held: Since the payment was made in circumstances of constraint and under protest, a violation of Article 6(1) was found. However: "The 'right to a court', which is a constituent element of the right to a fair trial, is no more absolute in criminal than in civil matters. In the Contracting States' domestic legal systems, a waiver of this kind is frequently encountered both in civil matters, notably in the shape of arbitration clauses in contracts, and in criminal matters in the shape inter alia of fines paid by way of composition. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention; on this point the court shares the view of the Commission." The court looks behind the appearances and investigates the realities of the procedure.
European Convention on Human Rights 6(1)
1 Citers

[ Worldlii ] - [ Bailii ]
 
Freightex Ltd v International Express Co. Ltd Transcript No. of 1980; Unreported, 15 April 1980
15 Apr 1980
CA
Dunn LJ, Stephenson L.J. and Sir Stanley Rees
Insolvency, Litigation Practice
Dunn L.J: "I do not think that a liquidator or an assignee from a liquidator should be put on terms either by way of security for costs or otherwise as a condition of enforcing an assigned claim." the other court members thought it was inappropriate to impose such a condition in that particular case.
1 Citers


 
Kennaway v Thompson [1980] 3 All ER 329; [1981] QB 88; [1980] EWCA Civ 1
30 Apr 1980
CA
Lawton, Waller LJJ, Sir David Cairns
Nuisance, Litigation Practice
The plaintiff's property adjoined the defendant's boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable nuisance, but he had refused an injunction, saying that the greater public good should prevail. The plaintiff appealed. Held: The fact that the wrongdoer, the defendant, was in some sense a public benefactor, in this case by providing a service which was attractive to the public, has never been considered a sufficient reason to refuse an injunction. The denial of an injunction was discretionary, and should not be used to allow a wrongdoer to continue his nuisance. An injunction was granted which would restrict substantially, but not completely, the races on the water, and the damages award was reduced.
1 Cites

1 Citers

[ Bailii ]
 
British Steel Corporation v Granada Television Ltd [1981] 1 All ER 435
7 May 1980
CA
Lord Denning MR, Templeman LJ
Media, Contempt of Court, Litigation Practice
Lord Denning MR said that the Norwich Pharmacal case opened "a new chapter in our law" and "Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same procedure should be available when he desires to obtain redress against the wrongdoer - or to protect himself against further wrongdoing."
Templeman LJ: "In my judgment the principle of the Norwich Pharmacal case applies whether or not the victim intends to pursue action in the courts against the wrongdoer provided that the existence of a cause of action is established and the victim cannot otherwise obtain justice. The remedy of discovery is intended in the final analysis to enable justice to be done. Justice can be achieved against an erring employee in a variety of ways and a plaintiff may obtain an order for discovery provided he shows that he is genuinely seeking lawful redress of a wrong and cannot otherwise obtain redress. In the present case BSC state that they will not finally determine whether to take legal proceedings or whether to dismiss the employee or whether to obtain redress in some other lawful manner until they have considered the identity, status and excuses of the employee. The disclosure of the identity of the disloyal employee will by itself protect BSC and their innocent employees now and for the future and is essential if B.S.C. are to redress the wrong."
1 Cites

1 Citers


 
British Steel Corporation v Granada Television Ltd [1981] AC 1096; [1981] 1 All ER 452; [1980] 3 WLR 774
7 May 1980
HL
Wilberforce, Salmon, Fraser of Tullybelton, Russell of Killowen LL, Viscount Dilhorne
Media, Litigation Practice
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief. Held: (Lord Salmon dissenting) The courts have never recognised a public interest right of the media to protect their sources where disclosure was necessary in the interests of justice. As to procedure, the courts could order disclosure of a third party's name. The defendant here could not claim to have been unaware of any wrongdoing by the person who delivered the documents, and this was not a case where they would receive the limited protection from discovery available in defamation cases.
Lord Wilberforce said: "there is a wide difference between what is interesting to the public and what it is in the public interest to make known."
1 Cites

1 Citers


 
Rahman (Prince Abdul) bin Turki al Sudairy v AbuTaha [1980] CLY 2153; [1980] 1 WLR 1268; [1980] 3 All ER 409; [1980] 2 Lloyds Rep 465
1 Jun 1980
CA
Lord Denning MR
Litigation Practice
Lord Denning, MR said: "So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied."
1 Citers



 
 In re Racal Communications Ltd; In Re a Company; HL 3-Jul-1980 - [1981] AC 374; [1980] UKHL 5; [1980] 2 All ER 634; [1980] 3 WLR 181
 
Whitehouse v Jordan [1981] 1 WLR 246; [1980] UKHL 12; [1981] 1 All ER 267
17 Dec 1980
HL
Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Bridge of Harwich
Litigation Practice, Professional Negligence
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge's finding in his favour. Held: In this case most of the evidence at issue was that of expert witnesses, and the court might therefore be more ready to depart from findings of fact by the judge.
Lord Wilberforce said as to expert evidence: "While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating."
1 Cites

1 Citers

[ Bailii ]

 
 Hanlon v The Law Society; HL 1981 - [1981] AC 124; [1980] 2 WLR 756; [1980] 2 All ER 199

 
 Searose v Seatrain UK; 1981 - [1981] CLY 2163; [1981] 1 WLR 894

 
 Evans v London Medical College (University of London); 1981 - [1981] 1 WLR 184; [1981] 1 All ER 715

 
 Buttes Gas and Oil Co v Hammer (No 3); CA 1981 - [1981] 1 QB 223

 
 Barnett v French; CA 1981 - [1981] 1 WLR 848

 
 Joyce v Yeomans; CA 1981 - [1981] 1 WLR 549; [1981] 2 All ER 21

 
 Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd; HL 1981 - [1981] AC 909; [1981] 1 Lloyds Rep 253
 
EMI Records v Riley [1981] 1 All ER 838; [1981] 1 WLR 923
1981
ChD
Dillon J
Intellectual Property, Litigation Practice
The defendant to an action for an injunction by the plaintiff on behalf of the British Phonographic Industry Copyright Society, said that the company did not properly represent the members of the Society. Held: It could be inferred that all relevant members of a copyright society would wish to suppress counterfeit goods, and so they had a sufficient common interest to allow a representative action by the society acting through the plaintiff. Allowing a representative action would avoid substantial and unnecessary complications of each member of the class pursuing a separate action.
1 Cites

1 Citers



 
 Attorney General v British Broadcasting Council; HL 1981 - [1981] AC 303; [1980] 3 All ER 161; [1980] 3 WLR 109

 
 Choice Investments Ltd v Jeromnimon; CA 1981 - [1981] QB 149

 
 Stafford Winfield Cook and Partners v Winfield; 1981 - [1981] 1 WLR 458
 
Hayward v Thompson [1982] 1 QB 47; [1981] 3 All ER 45
1981
CA
Sir George Baker, Lord Denning MR, Sir Stanley Rees
Defamation, Litigation Practice
A later publication by the same defendant can be used to identify the plaintiff in an earlier publication. If the defendant did intend to refer to the plaintiff, it may be enough if the recipient understood it as referring to the plaintiff regardless of how unreasonable or extraordinary it may have been for the recipient to do so.
Lord Denning MR said: "whether one or more causes of action are to be included in one verdict or judgment will depend upon the exercise of the trial Judge’s judicial discretion." It is the practice of the English courts in defamation actions to favour a single award of damages, even where there is more than one cause of action.
The court should in interpreting a passage, look to the meaning which the ordinary and reasonable reader would give it on a first reading.
Lord Denning considered the use of evidence as to the meaning: "Many read the article. In England Sir Peter Scott did so. He said that the words "One is a wealthy benefactor of the Liberal party" conveyed to him Mr. Jack Hayward. They did likewise to a Mrs. Cowper who gave evidence. In the Bahamas Mr. Hayward's daughter and son-in-law read it and thought it referred to him. But the most telling evidence came from Mr. Hayward himself. He said that in the Bahamas, after the article, the telephone never stopped ringing, day or night, either at home or at the office. He set it out in a contemporary letter from the Bahamas: "The telephone has hardly stopped ringing since I returned and reporters from virtually every newspaper have been on the line." The most striking incident was that: . . "
Sir George Baker said: "There are few civil actions in which nothing new emerges in the course of the hearing."
Sir Stanley Rees answered an argument that it was not open in law in any circumstances to rely upon a subsequent publication in order to provide evidence of a defamatory meaning or of identification in an earlier article. Counsel referred the court hearing that argument to a number of authorities, in which an original publication was of innocent material which only became defamatory upon the publication of subsequent material, submitting that the principle derived from the cited cases was that a writer of innocent matter could not, by reason of facts which came into existence subsequent to the original innocent publication, become liable in damages for libel because the subsequent material attributed a defamatory meaning to the innocent publication, saying: "The question we have to consider is whether that well-established principle applies to a case such as the instant one when (1) the original publication is defamatory; (2) when the second publication relied upon explicitly identifies the person defamed; and (3) it is published by the same party who published the original libel."
The learned judge held that it was open to find that, as from the second publication, the plaintiff had been publicly named as the person referred to in the first article, which was defamatory.
1 Citers



 
 Kuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru; CA 1981 - [1981] 2 Lloyd's Rep 510

 
 Buttes Oil and Gas Co v Hammer; CA 1981 - [1981] 1 QB 223

 
 Re Brickman's Settlement; 1981 - [1982] 1 All ER 336; [1981] 1 WLR 1560

 
 Chanel Ltd v F W Woolworth and Co; CA 1981 - [1981] 1 WLR 485; [1981] 1 All ER 745
 
Williams v Home Office (No 2) [1981] 1 All ER 1151
1981

Tudor-Evans J
Litigation Practice, Torts - Other
Tudor-Evans J said: "In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the confinement of a prisoner in any prison. How then can it be unjustifiable and unlawful to confine him there? I accept the submission . . that the sentence of the court and the provisions of section 12(1) provide a defence to this action, subject to the arguments based on the Bill of Rights and natural justice . . The next question is whether the lawfulness of the detention can be affected by the conditions of the detention. I do not think so. The question of the conditions of imprisonment is a matter for the Secretary of State. The check or safeguard against unacceptable conditions . . lies in the prisoner's rights under the rules to complain to the governor or the Secretary of State."
1 Cites

1 Citers



 
 Regina v Northern Ireland Commissioner, ex parte Social Services Secretary; CA 1981 - [1981] 1 WLR 1017

 
 Clipper Maritime v Mineralimportexport; 1981 - [1981] CLY 2125

 
 Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Ltd and Another; QBD 1981 - [1982] 1 QB 304; [1981] 3 All ER 417
 
Archital v Boot Construction [1981] 1 Ll R 642
1981

Gibson J
Litigation Practice

1 Cites

1 Citers


 
In re Brisbane City Council and White (1981) 50 LGRA 225
1981


Commonwealth, Litigation Practice
The use of the the phrase 'without prejudice' was "futile" in the context of an originating process.
1 Citers



 
 Trendtex Trading Corporation v Credit Suisse; HL 1981 - [1982] AC 679; [1981] 3 WLR 766; [1981] 3 All ER 520

 
 Castanho v Brown and Root (UK) Ltd; HL 1981 - [1981] AC 557

 
 Williams v Home Office (No 2); 2-Jan-1981 - [1981] 1 All ER 1211
 
A J Bekhor and Co Ltd v Bilton [1981] 1 QB 923; [1981] EWCA Civ 8; [1981] 1 Lloyd's Rep 491; [1981] 2 All ER 565; [1981] 2 WLR 601; [1981] Com LR 50
6 Feb 1981
CA
Ackner LJ, Stephenson LJ, Griffiths LJ
Litigation Practice
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the documents concerned did not relate "to matters in question in the action" and the power to order interrogatories did not relate "to any matter in question between the applicant and that other party in the cause or matter". Ackner LJ however said: "where the power exists to grant the remedy, there must also be inherent in that power the power to make ancillary orders to make that remedy effective." The power in section 45(1) includes the power to grant an interlocutory injunction to restrain a party to any proceedings from removing from the jurisdiction or otherwise dealing with assets located within the jurisdiction where that party is, as well as where he is not, domiciled, resident or present within that jurisdiction . . there must be inherent in that power, the power to make all such ancillary orders as appears to the court to be just and convenient, to ensure that the exercise of the Mareva jurisdiction is effective to achieve its purpose.
Supreme Court of Judicature (Consolidation) Act 1925 45
1 Cites

1 Citers

[ Bailii ]
 
Rank Film Distributors v Video Information Centre [1982] AC 380; [1981] 2 All ER 76; [1981] 2 WLR 668
1 Mar 1981
HL
Lord Wilberforce, Templeman L
Litigation Practice, Intellectual Property
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance. Held: The appeal was dismissed. The privilege against self-incrimination was capable of being invoked. The test is as to whether there is a "real and appreciable risk of criminal proceedings . . being taken against" the witness.
Lord Wilberforce said: "However, it is only too clear (and I deliberately use the language of reluctance) that supply of the information and production of the documents sought would tend to expose the respondents to a charge of conspiracy to defraud… A charge of conspiracy to defraud, so far from being as it sometimes is, a contrived addition to other charges, is here an appropriate and exact description of what was being done… Unless some escape can be devised from this conclusion, the privilege must inevitably attach." and
"Mr. Nicholls was at pains to make clear that he was not, in these submissions, attempting to negate or undermine the privilege against self-incrimination. This has been too long established in our law as a basic liberty of the subject - in other countries it has constitutional status - to be denied. It has received modern recognition in section 14 of the Civil Evidence Act 1968 and in this House."
The protection extended to material the discovery of which which might "Set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character."
'It may seem to be a strange paradox that the worse, ie the more criminal, their [ie the defendants'] activities can be made to appear, the less effective is the civil remedy that can be granted, but that, prima facie, is what the privilege achieves.' and 'This has been too long established in our law as a basic liberty of the subject (in other countries it has constitutional status) to be denied.' "It is certainly correct to say, that existing law and practice to some extent prevent matter disclosed on discovery in civil proceedings from being used to the prejudice of the disclosing party. The protection is described with different words: the matter must not be used for an 'improper' purpose' or a 'collateral object' or, most strongly, ´otherwise than in the action, in which they are disclosed'.
Lord Fraser of Tullybelton: "At one stage, the argument seemed to depend on the possibility that the court which ordered the discovery might place an express restriction on the use of any information disclosed. In my opinion, any argument on that basis must be rejected. A restriction by the court making the order would, no doubt, be effective to bind the party who obtained the order, but it can hardly be suggested that it would be effective to prevent a prosecutor in the public interest from using, or an English criminal court (a fortiori a Scottish criminal court if a conspiracy were prosecuted in Scotland) from admitting the information in evidence at a trial. All evidence which is relevant is prima facie admissible in a criminal trial, although the trial judge has a discretion to exclude evidence which, though admissible, has been obtained by unfair means from the accused after commission of the offence: Reg. v. Sang [1980] AC 402. But it is obvious that a person who has to rely on an exercise of judicial discretion is in a less secure position than one who, by relying on the privilege, can avoid providing the information in the first place. " and "The main basis of the argument was an implied rule, said to be derived from the case of Riddick v. Thames Board Mills Ltd. [1977] QB 881, to the effect that evidence which has been disclosed under compulsion in a civil action cannot be used against a person who has disclosed if for the purposes of another civil action or of a criminal prosecution. It was argued that any incriminating information disclosed by a person making discovery or answering interrogatories would enjoy complete protection by reason of that rule, because the information would have been given under compulsion, in respect that refusal to give it would be contempt of court. I would make one preliminary observation on that argument. It seems to me to go much too far. If it is well-founded, it means that the established practice whereby judges warn witnesses that they need not answer questions addressed to them in oral examination in court, if the answers might tend to incriminate them, is unnecessary, because refusal to answer would, in the absence of the warning, be contempt of court and any incriminating evidence having been given under compulsion would not be admissible against them in criminal proceedings. I approach a proposition leading to that result with some scepticism. In any event, the case of Riddick was concerned only with the question of the use to which documents recovered on discovery could be put by the party who had obtained discovery. Lord Denning M.R. at p. 896H, stated the principle in a sentence thus: ´A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and for no other purpose' (emphasis added). That statement of principle would have to be extended to include cases such as Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133, where an order was made for discovery of information for the purpose of its being used in another action. The principle is, I think, that information is not to be used by the party who gets discovery for purposes other than that for which production was ordered. But the case of Riddick had nothing to do with the use of information for prosecution in the public interest. On the contrary, both Lord Denning M.R. at p.896 and Stephenson L.J. at p.901, referred with approval to the observations of Talbot J. in Distillers Co. (Biochemicals) Ltd. v. Times Newspapers [1975] QB 613, 621, recognising that there might be a public interest in favour of disclosure which would override the public interest in the administration of justice which goes to preserve the confidentiality of documents disclosed on discovery. That is clearly correct. If a defendant's answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the court which ordered the interrogatories, and probably without such leave. If that is right the object of the privilege against self-incrimination would not be completely achieved by relying on any rule which can be derived from Riddick v. Thames Board Mills Ltd. [1977] QB 881."
1 Cites

1 Citers


 
Union Bank of the Middle East Ltd v Clapham Unrepoerted, 15 July 1981
15 Jul 1981
CA
Lord Denning MR, Shaw LJ, Griffiths LJ
Litigation Practice
The bank having sued the defendant under a guarantee, the defendant sought to join in the principal debtor company to pursue a counterclaim. The defendant appealed a refusal on the ground that the principal would not itself have been given leave to serve a writ on the plaintiff who was outside the jurisdiction. Held: The appeal was allowed. No distinction was to be made between sub-paragraphs (i) and (ii): 'Once the bank brought their proceedings in this country for the sumwhich they say is owning to them, they submitted to the jurisdiction of these courts; and thereby exposed themselves to any defence or counterclaim which is properly connected with these proceedings.'
Rules of the Supreme Court 6(2)(b)(ii)
1 Citers



 
 John Charles Brooks v Club Continental; 13-Oct-1981 - [1981] TRL 126 DC; (1982) 90 ITSA MR 112
 
Darashah v UFAC (UK) Ltd [1982] WL 222281; Times, 30 March 1982
1982
CA
Lord Denning MR
Litigation Practice
A Mareva order had been obtained. The order explicitly included goodwill as an asset of the company, but the defendant argued still that it was not covered as an asset for the injunction. Held: The court rejected the assertion.
Lord Denning MR said: "Every businessman knows that goodwill is a valuable commodity". Lord Denning cited, as typical examples of goodwill assets, "a list of customers but also the established connections with them".
1 Citers


 
Siebe Gorman and Co Ltd v Pineupac Ltd [1982] 1 WLR 185
1982


Litigation Practice
The court should be expected to be reluctant to relieve a party of the consequences of a consent order.
1 Citers



 
 George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd; CA 1982 - [1983] 1 All ER 108

 
 Z Ltd v A-Z and AA-LL; CA 1982 - [1982] 1 AB 558; [1982] 2 WLR 288; [1982] 1 All ER 556

 
 O'Reilly v Mackman; HL 1982 - [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124; [1983] UKHL 1
 
London Association of Shipowners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242
1982
CA

Litigation Practice
The P and O. Company, one of the plaintiffs, not asserting any public right, and so not using the Attorney-General's name, was bound to prove special damage and was unable to do so. It had failed to establish its alleged rights and so its appeal was dismissed but nevertheless the court made a declaration of right in favour of the P and O. The court supported to the distinction between private and public rights and to the necessity for the latter to be enforced by, or through, the Attorney-General.


 
 Khan v Khan; CA 1982 - [1982] 1 WLR 513; [1982] 2 All ER 60

 
 Hytrac Conveyors Ltd v Conveyors International Ltd; CA 1982 - [1983] 1 WLR 44; [1982] 3 All ER 415; [1983] FSR 63
 
The Attorney General v Payne [1982] 30 WIR 88
1982


Litigation Practice

1 Citers



 
 Hadmor Productions Ltd v Hamilton; HL 1982 - [1983] 1 AC 191; [1982] ICR 114
 
Siebe Gorman and Co Limited v Pneupac Limited [1982] 1 WLR 185
1982
CA

Litigation Practice
Lord Denning MR discussed the meaning of 'consent order' saying: "There are two meaning to the words "by consent". One meaning is this: the words "by consent" may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words "by consent" may mean "the parties hereto not objecting". In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties."
1 Citers



 
 ITC Film Distributors Ltd v Video Exchange Ltd; ChD 1982 - [1982] 1 Ch 431

 
 Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd; CA 1982 - [1982] 2 Lloyds Rep 132
 
Langdale v Danby [1982] 1 WLR 1123; [1982] 3 All ER 129
1982
HL
Lord Bridge
Litigation Practice
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary judgement, but now appealed reversal of that by the Court of Appeal who had admitted new evidence. Held: The House adapted the principle in Ladd -v- Marshall to appeals from summary judgments. On an application for leave to withdraw an admission a court will require an explanation for the making of the admission: "The explanation must be a sensible one based on evidence of a solid and substantial character." Here, leave to withdraw an admission was not permitted after judgment where the plaintiffs had spent two years and a great deal of money enforcing the judgment.
Lord Bridge observed: "The primary and most important question for decision by your Lordships’ House is whether, on hearing an appeal against a summary judgment given in favour of a plaintiff . . the Court of Appeal has an unfettered discretion to receive further evidence or whether it may only do so on special grounds." and "In other words, the judge can only give judgment for the plaintiff if satisfied that there are no such merits on the defendant's side as to warrant giving leave to defend. In the ordinary use of language, a hearing leading to the conclusion that there are no merits to be tried is just as much a hearing ´on the merits´ as a full scale trial of disputed issues" and "In the situation arising on an appeal to the Court of Appeal from a summary judgment, the application of these conditions [in Ladd v Marshall ] and perhaps the conditions themselves will require some modification. It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required in preparing for trial."
1 Cites

1 Citers



 
 R and T Thew Ltd v Reeves; CA 1982 - [1982] QB 172

 
 Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation); CA 1982 - [1982] 1 WLR 301; [1982] 1 All ER 685; [1981] EWCA Civ 10
 
Galaxia Maritime SA v Mineralimportexport [1982] 1 WLR 539
1982


Litigation Practice
The effect on third parties should be taken into account when granting an interim injunction.
1 Citers



 
 Buttes Oil and Gas Co v Hammer (No 3); HL 1982 - [1982] AC 888; [1981] 3 All ER 616; [1981] 3 WLR 787
 
Robinson v Robinson (Disclosure) Practice Note (1983) FLR 102; [1982] 1 WLR 786
1982
CA
Templeman LJ, Ormrod LJ, Wood J
Family, Litigation Practice
The court considered the duty of parties in finacial relief proceedings to give full disclosure. Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank disclosure of their property and financial resources; accordingly the power to set aside orders was not limited to cases of fraud or mistake, but extended to cases of material non-disclosure; where it could be said that, on the true facts, the orders should not have been made, then the orders could be set aside.
Templeman LJ said: "There is no doubt that both the Court of Appeal and the judge at first instance have jurisdiction in the situation with which we are faced in this case, where the application is to set aside a final order. " After quoting from de Lasala, he continued: "There are many references in the books to separate actions to set aside a judgment on the ground of fraud. In the Family Division, as has been said many times, this power to set aside final orders is not limited to cases when fraud or mistake can be alleged. It extends, and has always extended, to cases of material non- disclosure.
A distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied, and the power to set aside an order which has been obtained by fraud or mistake, or by material non-disclosure. The essence of the distinction is that the power to vary usually reflects changes of circumstances subsequent to the date of the order, whereas the power to set aside arises where there has been fraud, mistake, or material non-disclosure as to the facts at the time the order was made. From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised. These can be determined more easily, as a rule, by a judge at first instance. Moreover, he can go on to make the appropriate order which we cannot do in this court. I think that these proceedings should normally be started before a judge at first instance, although there may be special circumstances which make it better to proceed by way of appeal."
He referred to the principles in Minton before saying.
After referring to the clean break principle in Minton v. Minton, Ormrod LJ went on: "It is essential in these cases that the court retains its power to protect both parties against injustice which may arise from failure to comply with their obligations to disclose. In other words there is a lot to be said for the principle of the clean break but I have no doubt that Lord Scarman, when he used the phrase, had in mind that the break should be clean in more senses than one."
The court of appeal is not the appropriate forum for inquiry into disputed issues of non-disclosure raised in proceedings for the setting aside of a financial order
Matrimonial Causes Act 1973
1 Cites

1 Citers



 
 Leco Investments (UK) Ltd v Land Pyrometers; CA 1982 - [1982] RPC 133

 
 CBS United Kingdom v Lambert; CA 1982 - [1982] 3 WLR 746; [1982] 3 All ER 237
 
Chief Constable of Kent v V [1982] CLY 2495; [1983] QB 34
1982

Lord Justice Donaldson, Lord Denning MR, Slade LJ
Extradition, Local Government, Litigation Practice
In order to obtain an injunction with respect to property in the possession of a defendant, the right sought to be enforced need not be a proprietary right of the claimant, nor a right for the benefit of the claimant itself. (Slade LJ dissenting)
1 Citers



 
 Re Edwards' Will Trusts; CA 1982 - [1982] Ch 30

 
 Emanuel v Emanuel; 1982 - [1982] 1 WLR 669; [1982] 2 All ER 342

 
 Regina v Plymouth, ex Parte Rogers; CA 1982 - [1982] 3 CMLR 221
 
Beattie v Halliday Unreported 4 February 1982
4 Feb 1982

Lord Justice-Clerk Wheatley
Scotland, Litigation Practice
The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage. Held: Lord Justice-Clerk Wheatley said: "An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong."
1 Citers



 
 Home Office v Hariette Harman; HL 11-Feb-1982 - [1983] 1 AC 280; [1982] 2 WLR 338; [1982] 1 All ER 532; (1982) 126 SJ 136

 
 Practice Direction of 2nd November 1982; CA 2-Nov-1982 - [1982] 1 W L R 1375
 
Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179
1983
CA
Waller, Watkins, Fox LJJ
Litigation Practice, Employment
The claimant was dismissed on 7 September 1981. The time limit of three months, expired at midnight on 6 December. Other departments shared the building entrance with the Tribunal. The front door was closed over the weekend, but there was a letterbox, allowing posting. They would be cleared by a security officer when the offices re-opened and, supposedly, delivered to the appropriate intended recipient. Thus there was a communal letterbox receiving letters for all occupants, including the Employment Tribunal. The Originating Application was not presented until the Monday morning of 7 December 1981; and the question arose as to whether it could have been delivered and effectively presented on the previous day. The court considered the delivery of copy documents and what constituted "delivery... to the proper quarter". The Court considered that the complaint could have been properly served through the communal letterbox. An application would be presented if placed through a letterbox or dealt within some other way held out by the regional office as a means whereby it will receive communications.
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1 Citers


 
Kirkup v British Rail Engineering Ltd [1983] 1 WLR 1165; [1983] 3 All ER 147
1983
CA

Litigation Practice, Evidence
Where interrogatories are administered they should be drafted with considerable rigour because if they are so widely drawn as to be vague they may be regarded as oppressive.
1 Citers


 
In re Poh [1983] 1 WLR 2
1983
HL
Lord Diplock, Lords Fraser of Tullybelton, Keith of Kinkel, Scarman and Roskil
Litigation Practice, Judicial Review
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords. Held: "l, decided that on the principle of Lane v. Esdaile the House had no jurisdiction to hear such an appeal. Their Lordships were "not concerned with the procedure whereby this appeal moved from the Divisional Court to the Court of Appeal". The case fell within the rule in Lane v. Esdaile [1891] A.C. 210 and the House has no jurisdiction to entertain it."
1 Cites

1 Citers


 
C M Van Stillevoldt BV v E L Carriers Inc [1983] 1 WLR 207; [1983] 1 All ER 699
1983
CA
Griffiths LJ
Litigation Practice
Practice on applications for leave to appeal out of time. The court allowed an extension where the applicant's solicitors were 2 weeks late in setting down the appeal. Griffiths LJ cited with approval the approach taken at first instance by the Registrar who said: "In my judgment, all relevant factors must be taken into account in deciding how to exercise the discretion to extend time. Those factors include the length of the delay, the reasons for the delay, whether there is an arguable case on appeal, and the degree of prejudice to the defendant if time is extended." The exercise of the delegated discretion cannot confine the exercise of the same discretion by the person in whom it is primarily reposed.
1 Citers


 
Practice Direction (Minor: Independent Reporter) [1983] 1 All ER 1097; [1983] 1 WLR 416
1983


Children, Litigation Practice
An 'independent' reporter may not interview the ward without the court's leave.
1 Citers



 
 Phestos Shipping Company Limited v Kurmiawan; 1983 - 1983 SLT 388
 
Evans Construction Co Ltd v Charrington and Co Ltd [1983] QB 810; [1983] 2 WLR 117
1983
CA
Donaldson LJ
Litigation Practice, Landlord and Tenant
The tenant sought a new lease and served a notice. The notice named the former landlord not the current landlord. Held: Order 20 could be used to correct the name where the error was a mere mistaken description of the correct party, but not a mistake as to the actual identity of the party. No injustice would be created here by requiring the correct landlord to make good his reply.
Donaldson LJ said: "In applying Ord. 20, r. 5 (3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in making any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in light of al the surrounding circumstances. In the instant case I have not the slightest difficulty in accepting Mr. Greenwood's assertion that he intended to sue the relevant landlord under the Act. After all, he was responding on behalf of his lessee client to a notice to quit given on behalf of the landlord and it would have been surprising, to say the least, if he had thought that it was appropriate to respond by claiming a new lease from the managing agent or other stranger to the landlord and tenant relationship. Accordingly I would conclude that he made a genuine mistake of a character to which Ord. 20, r. 5 (3) can apply."
RSC Order 20 r5
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The Niedersachsen [1983] 1 WLR 141; [1983] 2 Lloyds LR 600
1983
ChD
Mustill J
Litigation Practice
In order to obtain, or to enlarge a freezing order, the applicant must show that in considering the evidence as a whole he has, at a minimum, a "good arguable case", and also the existence of a real risk of dissipation or secretion of assets.
1 Citers


 
Rocco Giuseppe and Figli v Tradax Export SA [1984] 1 WLR 742; [1983] 3 All ER 598; [1983] 2 Lloyds Rep 434
1983

Parker J
Litigation Practice
The Court has no power to award a different rate of interest from the statutory rate.
Judgments Act 1838 17 - Administration of Justice Act 1970 44(1)
1 Citers


 
Dormeuil Trade Mark [1983] RPC 13
1983
ChD
Nourse J
Legal Professions, Litigation Practice
Parties had together applied to register a trade mark. Later one applied and the other opposed, and application. At various times they had been represented by trade mark agents and solicitors. Protection against discovery was now sought as to communications with the trade mark agents. Held: Nourse J refused to extend the protection of legal advice privilege. The 1968 Act had extended the privilege to patent attorneys, but not to trade mark agents.
Nourse J noted that historically cases had been conducted only by solicitors and counsel and added this: "[Counsel for the defendants] says that in those days it was never necessary for anybody to consider whether the privilege should apply in a case where other professional men, far less non-professional men, were concerned in advising clients, or indeed in conducting litigation on their behalf. He says that in these days the rule should be different. Like the learned Master, I see great force in that submission. It does seem to me to be a little odd and possibly perverse, that if a trade mark agent is entitled to advise a client in relation to certain legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply as would certainly apply in a case where the advice was being given and the proceedings were being conducted by a solicitor. Nevertheless I do not think it is open to me in this court to fly in the face of the established rule, as enunciated in Wheeler v Le Marchant, the statement of Chitty J in Moseley v Victoria Rubber Company, and the fact that in 1968 the legislature seemed to think it was necessary expressly to extend the privilege to the case of patent agents."
Civil Evidence Act 1968 15 - Patents Act 1977 104
1 Citers



 
 Stevenson v Midlothian District Council; HL 1983 - 1983 SC (HL) 50

 
 Observer Ltd v Gordon; 1983 - [1983] 1 WLR 1008

 
 Neumann v Bakeaway Ltd; CA 1983 - [1983] 1 WLR 1016

 
 Ninemia Maritime Corporation v Trave Schiffahrtsgellschaft MbH; 1983 - [1983] 2 Lloyd's Reports 600

 
 Central Insurance Co Ltd v Seacalf Shipping Corpn (The Aiolos); CA 1983 - [1983] 2 Lloyd's Rep 25

 
 Air Canada v Secretary of State for Trade; HL 1983 - [1983] 2 AC 394; [1983] 1 All ER 161; [1983] 2 WLR 494
 
The Popi M; Rhesa Shipping Co SA v Edmonds [1983] 2 Lloyd's Rep 235
1983

Bingham J
Damages, Litigation Practice
The parties disputed the cause of the loss of a ship. The experts suggested different but improbably explanations; each supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. The owners of the ship claimed against underwriters for her total loss which had occurred in calm weather. It became common ground that the vessel had sunk because of an ingress of sea water through a hole in the side plating. Underwriters contended that the vessel had been unseaworthy and that had been the proximate cause of the entry of water. The court made no finding that the vessel was seaworthy or that she was unseaworthy; he was left in doubt. The owners put forward a case that the hole in the side plating had been caused by contact with a submerged and moving submarine by eliminating other possibilities; the judge concluded that contact with a moving submarine was so improbable that if he were to conclude that it was the likely cause of the loss he had to be satisfied that any other explanation for the casualty had to be ruled out. The underwriters put forward a case that the hole had arisen through wear and tear and provided a detailed explanation as to how that had happened. The judge rejected that detailed explanation and was therefore left with a choice between the owner's submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by means of a mechanism which remained in doubt. Held: Bingham J referred to the dictum of Sherlock Holmes: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" He concluded that, despite the inherent improbability and despite the disbelief with which he had been inclined to regard it, the collision with the submarine had to be accepted on the balance of the probabilities as the explanation of the casualty.
1 Citers


 
Computer Machinery v Drescher [1983] 3 All ER 153
1983
ChD
Sir Robert Megarry VC
Costs, Litigation Practice
Sir Robert Megarry VC said: "For reasons that will appear, I think that I should pause in my recital of the facts in order to say something about these two cases. For a long while it has been settled law that if letters written 'without prejudice' do not result in an agreement, they cannot be looked at by the court even on the question of costs, unless both parties consent: see, for example, Walker v. Wilsher (1889) 23 QBD 335; Stotesbury v. Turner (1943) KB 370. Thus if in 'without prejudice' correspondence a defendant offers less than the plaintiff is claiming but more than the plaintiff ultimately recovers at the trial, the defendant cannot use his offer in support of a contention that the plaintiff should receive no costs for the period subsequent to the offer. If the claim is purely a money claim, this causes no difficulty: the defendant may pay into court under RSC Ord. 22 the sum that he is offering, and although knowledge of this will be withheld from the court until both liability and quantum have been decided, the fact of payment in is admissible, and usually highly relevant, in deciding what order for costs should be made. If, however, the claim is not solely a money claim, but some other relief is sought, such as an injunction, there was formerly no comparable procedure. What was needed was some procedure whereby the defendant could make an offer to submit to an injunction, give an undertaking or afford other relief on the footing that the offer would be without prejudice until the case was decided but with prejudice when it came to costs.
It was a procedure of this type which was suggested by Cairns L.J. in Calderbank v. Calderbank (1975) 3 A.E.R. 333 at 342, (1976) Fam. 93 at 105-106 and was acted on in McDonnell v. McDonnell (1977) 1 A.E.R. 766 at 770, (1977) 1 W.L.R. 34 at 38. These were both matrimonial appeals from the Family Division, however, and there has been some uncertainty whether the procedure applies to other cases. Thus 17 Halsbury's Laws (4th edn) para 213 cites Calderbank v. Calderbank for the proposition that 'in matrimonial proceedings relating to finance' a party may make this type of offer, and the 1983 cumulative supplement leaves it there. Nor do the cases appear to have been given the prominence which they deserve. Thus leading books which discuss offers made 'without prejudice' still leave unamended statements based on Walker v. Wilsher (1889) 23 QBD 335, without any mention of either Calderbank or McDonnell: see, for example, Phipson on Evidence (13th edn, 1982) p. 374; Cross on Evidence (5th edn, 1979) p. 301. Nor are the cases mentioned in The Supreme Court Practice 1982."
and
"In my view, the principle in question is one of perfectly general application which is in no way confined to matrimonial cases. Whether an offer is made 'without prejudice' or 'without prejudice save as to costs', the courts ought to enforce the terms on which the offer was made as tending to encourage compromise and shorten litigation; and the latter form of offer has the added advantage of preventing the offer from being inadmissible on costs, thereby assisting the court towards justice in making the order as to costs. I should say at once that no point on this arises for decision, as the parties have very sensibly acted on this footing. What I have been saying is as obiter as what Cairns L.J. said (and Scarman L.J. and Sir Gordon Willmer concurred with) in Calderbank v. Calderbank; but I hope that the attention of the profession (including authors and editors) will be more generally directed to what seems to me to be a valuable procedural process that is too little used."
1 Citers



 
 Jelson Estates Ltd v Harvey; CA 1983 - [1983] 1 WLR 1401
 
WEA Records v Visions Channel 4 Ltd [1983] 1 WLR 721
1983
CA
Sir John Donaldson MR
Litigation Practice
Sir John Donaldson MR explained that: "In terms of jurisdiction, there can be no doubt that this court can hear an appeal from an order made by the High Court upon an ex parte application. This jurisdiction is conferred by section 16 (1) of the Supreme Court Act 1981. Equally there is no doubt that the High Court has power to review and to discharge or vary any order, which has been made ex parte. This jurisdiction is inherent in the provisional nature of any order made ex parte and is reflected in R.S.C., Ord. 32, r. 6 . . As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult, if not impossible, to think of circumstances in which it would be proper to appeal to this court against an ex parte order without first giving the judge who made it or, if he was not available, another High Court judge an opportunity of reviewing it in the light of argument from the defendant and reaching a decision. This is the appropriate procedure even when an order is not provisional, but is made at the trial in the absence of one party: see R.S.C., Ord. 35, r. 2 (1), and Vint v. Hudspith (1885) 29 Ch.D. 322 to which Mr. Tager very helpfully referred us this morning."
1 Citers



 
 Commissioners of Customs and Excise v Aps Samex; 1983 - [1983] 1 All ER 1042
 
Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50; [1983] 2 All ER 884; [1983] 2 Lloyds Rep 365; [1983] 3 WLR 241
1983
HL
Lord Diplock, Lord Wilberforce
Litigation Practice, Jurisdiction
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity dictated that the judicial discretion to grant leave should be exercised with circumspection in cases where there existed an alternative forum, that is, the courts of the foreign country where the proposed defendant carried on business and whose jurisdiction would be recognised under English conflict rules. In exercising its discretion, it is not normally appropriate for the court to compare the quality of justice obtainable in a foreign forum which adopts a different procedural system (such as that of the civil law) with that obtainable in a similar case conducted in an English court.
Arbitration agreements are not covered by the Rome Convention, and their proper law is decided according to common law principles which require selection of the law of a country as the proper law governing the agreement.
Lord Wilberforce said: "It is not appropriate . . to embark upon a comparison of the procedures, or methods, or reputation or standing of the courts of one country as compared with those of another".
1 Cites

1 Citers



 
 Roberts Petroleum Ltd v Bernard Kenny Ltd; HL 2-Jan-1983 - [1983] 2 AC 192; [1983] 1 All ER 564; [1983] BCLC 28; [1983] 2 WLR 305
 
Cutts v Head and Another [1984] Ch 290; [1983] EWCA Civ 8; [1984] 2 WLR 349; [1984] 1 All ER 597
7 Dec 1983
CA
Oliver LJ, Fox LJ
Litigation Practice, Costs
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining that the judge had failed to take into account an offer of settlement made by him before trial. Held: The principles of Calderbank should be of general application, and not just within matrimonial proceedings.
Oliver LJ discussed the attempt to apply the without prejudice rule: "That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151, 156, be encouraged fully and frankly to put their cards on the table. The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.'
The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence 'without prejudice' to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase 'without prejudice' and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission."
and "As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused can only encourage settlement whilst, on the other hand, it is hard to imagine anything more calculated to encourage obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever may be offered to him even if it is as much as or more than everything to which he is entitled in the action."
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1 Citers

[ Bailii ]
 
Alltrans Express Limited v CVA Holdings Limited [1984] 1 All ER 685
1984
CA

Litigation Practice
The plaintiff claimed damages for breach of contract and obtained summary judgment. After a 15 day hearing on the assessment of damages the plaintiffs were awarded £2. The defendant had not paid money into court and the assessor considered the plaintiff to be the successful party and awarded the plaintiffs their costs. Held: The appeal was allowed. The consequence of the summary judgment was that the plaintiffs were entitled at least to nominal damages and the actual issue between the parties at the hearing was whether the plaintiffs were entitled to more than nominal damages and on that issue the defendant has succeeded. Further it was found that a payment into court of £2 would not have been accepted by the plaintiffs and would not have made any difference to the proceedings so it was wrong to hold that the absence of a payment into court made the plaintiffs the successful party.

 
Stockler v Fourways Estates Ltd [1984] 1 WLR 25
1984


Litigation Practice
The rule that an ordinary freezing order does not entitle a party in whose favour it was granted to say that he had a property or security interest in the respondent's assets in question, applies where a freezing order fixes on a single specified asset and even where that asset is an interest in land.
1 Citers



 
 General Accident Fire and Life Assurance Corporation Limited v Tanta; QBD 1984 - [1984] QB 100
 
Harrington v Polytechnic of North London [1984] 1 WLR 1293
1984

Sir John Donaldson MR
Litigation Practice
There is a public interest in not involving third parties in litigation if this can be avoided.
1 Citers


 
Regina v Chief Registrar Friendly Societies, ex parte Newcross Building Society [1984] QB 177
1984

Sir John Donaldson MR
Litigation Practice

1 Cites

1 Citers


 
Singer v Gray Tool Co (Europe) Ltd 1984 SLT 149. F
1984


Scotland, Litigation Practice

1 Citers


 
Banque de Paris v de Naray [1984] 1 Lloyd's Law Rep 21
1984
CA
Ackner LJ
Litigation Practice
The court considered an application for summary judgment. The defendant filed a statement, but no effective pleading. Held: The assertion in an affidavit alone of a situation said to found a defence was not enough of itself justify leave to defend; the Court must consider the whole situation. Ackner LJ said that the test was ‘Is there a fair or reasonable probability of the Defendant’s having a real or bona fide defence?’
1 Citers


 
Re Clore (deceased) (No. 2) [1984] STC 609
1984


Litigation Practice

1 Citers


 
Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80; [1984] 2 All ER 601
1984

Justice Nourse
Litigation Practice
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: "There must come a time when a point is normally to be treated as having been settled at first instance. I think that should be when the earlier decision has been fully considered, but not followed, in a later one. Consistently with the modern approach of the judges of this court to an earlier decision of one of their number . . I would make an exception only in the case, which must be rare, where a third judge is convinced that the second was wrong in not following the first."
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 General Accident Fire and Life Assurance Corporation v Tanter ('The Zephyr'); 1984 - [1984] 1 WLR 100; [1984] 1 All ER 35
 
O'Kelly v Trusthouse Forte plc [1984] QB 90; [1983] 3 All ER 456; [1983] IRLR 369
1984
CA

Litigation Practice, Employment
Workers claimed to be employees. Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one side or the other of some conceptual line drawn by the law is a question of fact - whether an employee was continuously employed. Whether he was employed under a contract of employment was a mixed question of fact and law.
Employment Protection (Consolidation) Act 1978
1 Citers


 
Davies v Reed Stock and Co Ltd Unreported 1984
1984


Litigation Practice, Limitation

1 Citers


 
In re McC (A Minor); McC v Mullan [1985] AC 528; [1984] 3 WLR 1227; [1984] 3 All ER 908
1984
HL
Lord Bridge of Harwich, Lord Lowry, Lor Templeman
Litigation Practice, Magistrates
The House considered the immunity from suit of judges. The Magistrate here had passed a custodial sentence on a minor without complying with a statutory provision which required him to inform the offender of the right to Legal Aid. Held: The House reaffirmed the common law rule that judges of the higher courts were immune from suit even if it could be shown that they had been actuated by malice.
Lord Bridge said: "The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction." and "It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass."
The word 'jurisdiction' is not always used in its strict sense
Lord Templeman discussed the judicial immunity of Magistrates: "If in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed by the Magistrate Acts within jurisdiction."
Lord Lowry said that the Courts should be slow to change or develop the law in disputed areas of social policy, particularly when Parliament has considered the position and made some changes, or has rejected the opportunity to make changes.
1 Cites

1 Citers


 
Extraktionstechnik Gesellschaft fur Anlagenbau GmbH v Oskar (1984) 128 SJ 417; (1984) LS Gaz 1362
1984
CA

Litigation Practice
Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the Court should not make tentative assessments of the respective chances of success of the parties or the relative strengths of their good or bad faith, and should not on such an examination grant the defendant conditional leave to defend but should give unconditional leave to defend.
1 Citers


 
Wiltshire County Council v Frazer (1984) 47 P&CR 69
1984
CA
Stephenson, May LJJ
Land, Litigation Practice
For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: "(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant ;
(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his)."
May LJ said: "It seems to me clear beyond a peradventure that no other interpretation of the facts is possible than that these defendants and the other persons unknown are wrongly in occupation of the highway. I think it matters not that each several caravan is at a separate point on the highway".
Rules of the Supreme Court Order 113
1 Citers


 
White v Brunton [1984] QB 570
1984
CA
Sir John Donaldson MR
Litigation Practice
A judgment given upon a trial of a preliminary issue was held to be a final judgment for the purpose of deciding whether leave to appeal was required on the ground that it could be treated as the first part of a final hearing. Sir John Donaldson MR exaplained his conclusion: "It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter upon the ability of the court to order split trials."
1 Citers


 
First National Securities v Hegerty [1984] 3 WLR 769; [1984] 3 All ER 641
1984
CA
Stephenson LJ
Land, Family, Litigation Practice
The husband had forged his wife's signature on the loan application and on the charge of the house held by himself and his wife as joint tenants. He had left the country, and the plaintiff sought to enforce the charge, and ex parte obtained an order nisi charging the husband's interest in the house. The wife petitioned for divorce. The bank appealed the master's refusal to make the charging order absolute, and the High Court upheld the appeal and refused to allow the matter to transfer to the Family Division. Held: The wife's appeal failed. The judge had identified and considered the correct issues. The plaintiffs had not delayed their action, and had begun it before the divorce. Stephenson LJ said that the courts should not defeat claims from legitimate creditors by use of a matrimonial jurisdiction, though enforcement of a charging order might be deferred until any application under section 30 of the 1925 Act had been dealt with,
Law of Property Act 1925 30 - Matrimonial Causes Act 1973

 
Re X (A Minor)(Wardship Injunction) [1984] 1 WLR 1422
1984

Balcombe J
Litigation Practice
An order was made preventing the identification of Mary Bell. She had been convicted of murder as a child, after leaving prison and taking a new identity, she had a child, and the order was made to protect the child until she was 18.
1 Citers


 
Re Highgrade Traders [1984] BCLC 151
1984
CA
Oliver LJ
Litigation Practice, Evidence
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect.
1 Cites

1 Citers


 
Interbulk Limited v Aiden Shipping Co Limited (The "Vimeira") [1984] 2 Lloyd's Rep 66
1984
CA
Robert Goff LJ, Ackner LJ
Litigation Practice, Arbitration
The court considered whether an arbitrator had a duty to raise a point missed by counsel. Held: Robert Goff LJ: “In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.” Ackner LJ: “Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.' But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.”
1 Cites

1 Citers


 
Wardle Fabrics Ltd v G Myristis Ltd (1984) FSR 263
1984


Litigation Practice
A person against whom an order is made must obey it until it is discharged.
1 Citers


 
P.S. Refson and Co. Ltd v Saggers [1984] 1 WLR 1025
1984
CA
Nourse LJ
Litigation Practice
Though interlocutory relief may be granted before issue of a writ, it is always upon an undertaking to issue one.
1 Citers


 
In Re Fletcher Times, 12 June 1984
12 Jun 1984
CA

Litigation Practice
The appellant challenged an order declaring him a vexatious litigant, saying that the order had been made by a court of two judges, where the Act required that only one judge should sit. Held: Only a single judge of the Hight Court has jurisdiction to hear such an application.
Supreme Court Act 1981 19(3) 42


 
 Isaacs v Robertson; PC 13-Jun-1984 - [1985] 1 AC 97; [1984] UKPC 22
 
Arias and Others v Commissioner for the Metropolitan Police and Another (1984) SJ (128) 784
1 Aug 1984
CA
Kerr, May LJJ
Litigation Practice, Police
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence of a widespread fraud and that the documents were crucial to their investigations and that the investigation might be "hampered" and disclosure might provide "an opportunity to fabricate evidence". The police claim succeeded. The trustees appealed Held: The appeal succeeded. May LJ giving the leading judgment said: "For my part I respectfully do not think that in that passage from his speech in IRC v. Rossminster . . which I have just read, Lord Diplock was intending to go as far as that. It seems to me quite apparent from his reference to 'other evidence' on the relevant application being 'strong enough to justify the inference that no reasonable person could have thought so' necessarily contemplates that to which Lord Morris referred in his speech in Conway v. Rimmer . . namely that in all these cases where there are conflicting public interests the ultimate decision as to which is to prevail must depend upon the exercise of discretion by the judge before whom the relevant application is made, that is to say by him conducting an appropriate balancing exercise of the one public interest against the other, and of the harm which would result from denying one public interest against the harm which would result from denying the other. That that is the duty of the court in these circumstances is, I think, quite apparent also from such cases as D v. NSPCC. . . In that context I quote paragraphs 19 and 21 of the learned judge's judgment: "The second defendant --that is, the detective constable -- has sworn that all the documents are crucial to his investigation and the reason why copies should not be provided he goes on to say, is because if they are disclosed at this stage there is a future real danger that his investigations may be hampered and an opportunity provided to fabricate evidence.
I am not satisfied that the evidence I have considered is strong enough to justify the inference that the Second Defendant has no reasonable grounds for his belief and accordingly this application for a mandatory injunction is refused."
It will be immediately apparent that the learned judge's reference to 'evidence' and 'inference' in paragraph 21 stems from the dictum of Lord Diplock in the Rossminster case which I have quoted . . "For my part I accept that in the factual context of the present case a claim to a public interest to retain documents so that criminal investigations may be properly prosecuted is at least arguable. I also accept, however, Mr. Purnell's submission that in this particular case the claim to that public interest immunity goes very much further than it has in any other case. He submits, for instance, that it would not be difficult in almost any case --particularly any case involving documentary material --for the prosecuting authority to come along and depose genuinely on affidavit to their fear that if the documents were disclosed the alleged offenders might seek to fabricate defences. This shows, he submits, how wide is the claim for immunity in this appeal.
For the reasons which I have tried to give, I think at the end of the day, in these cases where there are two conflicting public interests involved and one cannot at once say that in the particular circumstances one or the other must clearly prevail, it is a question for the court to perform the sort of balancing exercise to which I have referred, setting the one public interest against the other, the benefit of which will accrue from the maintenance of the one against the benefit which will accrue from the maintenance of the other, and also the harm which will accrue from not allowing one or the other to succeed . . Whilst I bear in mind what Lord Morris said in his speech in Conway v. Rimmer . . that one must remember that it may sometimes be difficult for a person claiming this particular public interest privilege to condescend to substantial particulars for the very reason that, if he does, he may give the whole game away at that stage, I am satisfied that the evidence in the two affidavits to which I have referred, when properly and realistically analysed, is really only speculation. What the officer says, for instance, in the most recent affidavit is that, if the information were to be made available, 'it would enable them, if so minded, to attempt to cover their tracks by the production of other documents based on the information contained in the documents which I hold.
As I have said, I take the view that in all these cases what the court has to do is to conduct the appropriate balancing exercise. I would not wish it to be thought that in every case something more than the mere statement of belief on reasonable grounds on the part of the relevant police officer or revenue officer is required. Each of these cases, in which this conflict of public interest arises has to be decided on its own facts having regard to all the circumstances of the case as they then appear to the court. Doing the balancing exercise in the present case, however, bearing in mind the view that I take of the speculative character of the evidence proffered on behalf of the respondents, I am driven to the conclusion that the fact that these documents are the appellants' own documents, and that they are only asking for copies of them to enable the trust business to be carried on, even if they may wish to prepare their defence to any criminal prosecution which may hereafter be instituted, leads to the balance coming down clearly in favour of the appellants . . In my judgment, to make good that claim would require substantially more cogent evidence than is available in the affidavits sworn by the detective constable in the instant case."
1 Cites

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Government Trading Corporation v Tate and Lyle Industries Ltd Unreported, 24 Oct 1984
24 Oct 1984
CA
Robert Goff LJ
Litigation Practice
Reference was made to information derived from Iranian lawyers. The solicitor in an affirmation had set out his understanding of Iranian law on the incorporation of a Government Trading Corporation in Iran and stated that his information had been derived from a firm of lawyers practising in Tehran, and he believed it to be correct. He nevertheless claimed that the document was protected by legal professional privilege. Held. Robert Goff LJ emphasised that it will often be necessary, particularly in interlocutory applications, to refer to certain facts or certain advice and it may be necessary, in order to provide full and frank disclosure, to refer to the source of that advice. However, he concluded that that was a long way from waiving privilege.
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