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Litigation Practice - From: 1985 To: 1989

This page lists 152 cases, and was prepared on 02 April 2018.

 
Samick Lines Co Ltd v Owners of The Antonis P Lemos [1985] 1 AC 711
1985
CA
Parker LJ
Contract, Litigation Practice
Parker LJ said: "a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction"
1 Citers


 
Infabrics Ltd v Jaytex Ltd [1985] FSR 75
1985

Julian Jeffs QC
Litigation Practice
Where a party fails to preserve documents after the commencement of proceedings, the defaulting party risks "adverse inferences" being drawn for such "spoliation". Because the defendant had not preserved documents affecting the quantum of damage, the maxim 'omnia praesummuntur contra spoliatorem' was applied against it. It was not enough for solicitors merely to give instructions not to destroy documents, and they should ensure that active steps for their preservation are taken.
1 Cites

1 Citers


 
Nurcombe v Nurcombe [1985] 1 WLR 370
1985
CA
Browne-Wilkinson LJ, Lawton LJ
Company, Litigation Practice, Equity
The court discussed a minority shareholder's action to enforce the company's claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the company's claim, was analogous to that in which equity permitted a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees, which right the trustees will not themselves enforce, the trustees being joined as defendants.
He continued: 'Since the wrong complained of is a wrong to the company, not to the shareholder, in the ordinary way the only competent plaintiff in an action to redress the wrong would be the company itself. But, where such a technicality would lead to manifest injustice, the courts of equity permitted a person interested to bring an action to enforce the company's claim. The case is analogous to that in which equity permits a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees (which right the trustees themselves will not enforce), the trustees being joined as defendants. Since the bringing of such an action requires the exercise of the equitable jurisdiction of the court on the grounds that the interests of justice require it, the court will not allow such an action to be used in an inequitable manner so as to produce an injustice.'
. . And "It is pertinent to remember, however, that a minority shareholder's action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so."
Lawton LJ distinguished between actions brought for the benefit of the company on the one hand, and those brought for some other purpose on the other. He went on to say: "It is pertinent to remember, however, that a minority shareholder's action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so. In Gower, Modern Company Law, 4th ed (1979), the law is stated, in my opinion correctly, in these terms. . : 'The right to bring a derivative action is afforded the individual member as a matter of grace. Hence the conduct of a shareholder may be regarded by a court of equity as disqualifying him from appearing as plaintiff on the company's behalf. This will be the case, for example, if he participated in the wrong of which he complains.'"
1 Citers


 
EMI Recurds v Kudhail [1985] FSR 36
1985
CA

Litigation Practice, Intellectual Property
An order was sought against the defendasnt and unnamed defendants involved in copyright piracy. Held: The court was prepared to make an order against the named defendant on his own behalf and as representing all other persons engaged in the activity of which complaint is made. The common link afforded by that activity and the common interest in wishing to remain anonymous is sufficient to justify the order: "there was sufficient commercial interaction between counterfeiters to treat them all as a group".
1 Citers


 
The Sennar (No 2) [1985] 1 WLR 490
1985
HL
Lord Brandon
Litigation Practice, Estoppel
The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a final and binding decision on the merits.
1 Cites

1 Citers


 
Bonalumi v Secretary of State for the Home Department [1985] QB 675; [1985] 1 All ER 797
1985
CA

Litigation Practice, Extradition
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal. Held: The procedure under the 1879 Act was in the course of criminal proceedings (the eventual case in Sweden). The Court of Appeal Civil Division, by virtue of its constitution under the 1981 Act, had no jurisdiction in criminal matters, and could not hear the case.
Bankers' Books Evidence Act 1879 9 - Supreme Court Act 1981 18(1)(a)
1 Cites

1 Citers



 
 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd; 1985 - [1985] 2 NZLR 129

 
 Pamplin v Express Newspapers Ltd; 1985 - [1985] 1 WLR 689

 
 Derco Industries Ltd v A R Grimwood Ltd, Insurance Corporation of British Columbia and PLC Construction Ltd; 1985 - [1985] 2 WWR 137

 
 CBS United Kingdom Ltd v Perry; 1985 - [I985] FSR 421

 
 Williams v Fawcett; CA 1985 - [1986] QB 604; [1985] 1 All ER 787
 
G v G (Minors: Custody appeal) [1985] 1 WLR 647; [1985] FLR 894; [1985] 2 All ER 225
1985
CA
Sir John Arnold
Children, Litigation Practice
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: "What this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method - apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters . . the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."
1 Citers



 
 Jenkins v Livesey (formerly Jenkins); HL 1985 - [1985] AC 424; [1984] UKHL 3; [1985] FLR 813; [1985] 1 All ER 106; [1985] 2 WLR 47
 
In re Asbestos Insurance Coverage [1985] AC 331; [1985] 1 WLR 331; [1985] 1 All ER 716
1985
HL
Lord Fraser of Tullybelton
Litigation Practice
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court. Held: The brokers appeal was allowed. The question as to what evidence would and what evidence would not be relevant to an issue in the foreign action is primarily a matter for the foreign court: "It would be quite inappropriate, even if it were possible for this House or any English court to determine in advance the matters relevant to the issues before the Californian courts on which each of these witnesses is in a position to give evidence".
A witness however can simply reply that he does no know if that is the answer to the question. The jurisdiction " is to be construed so as not to permit mere "fishing" expeditions" and the court would not sanction an order which required production of documents which “may or may not exist.”
Evidence (Proceedings in Other Jurisdictions) Act 1975 82
1 Citers


 
Speed Seal Ltd v Paddington [1985] 1 WLR 1327; [1986] 1 All ER 91
1985
CA
Fox LJ
Litigation Practice, Torts - Other
The court was asked whether the defendant should be permitted to add to his pleadings a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants' business, and not for the protection of any legitimate interest of the plaintiffs. Held: It is an abuse of process to use litigation with the ulterior purpose of oppressing or harassing one's opponents. An action for the tort of abuse would lie where it could be shown that proceedings had been instituted in order to effect an object or purpose not within the scope of the process that had been instituted. The court approved a statement from American torts law 'One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.'
1 Cites

1 Citers


 
Regina v Manchester Coroner, ex parte Tal [1985] QB 67
1985


Litigation Practice
The court asked whether the Divisional Court was bound by previous decisions of that court, and answered: "we find it difficult to imagine that a single judge exercising this (supervisory) jurisdiction (of the High Court) would ever depart from a decision of a Divisional Court."
1 Citers



 
 British Airways Board v Laker Airways Limited; HL 1985 - [1985] AC 58; [1984] UKHL 7; [1984] 3 WLR 413; [1984] 3 All ER 39

 
 Westminster City Council v Great Portland Estates plc; HL 1985 - [1985] AC 661; [1984] 3 WLR 1035

 
 Bahai v Rashidian; CA 1985 - [1985] 1 WLR 1337

 
 Sybron Corporation v Barclays Bank plc; ChD 1985 - [1985] Ch 299
 
Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119
1985
CA
Griffiths, Sachs LJJ
Litigation Practice
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. It is sufficient if what he says shows the parties and, if need be, the Court of Appeal, the basis on which he has acted.
1 Cites

1 Citers



 
 Rush v Fife Regional Council; SCS 1985 - 1985 SLT 451
 
Regina v Greater Manchester Coroner, ex parte Tal [1985] 1 QB 67; [1984] 3 All ER 240; [1984] 3 WLR 643
1985
QBD
Goff LJ, McCullough and Mann JJ
Judicial Review, Litigation Practice
The court identified when the Administrative Court is entitled to depart from a previous decision of co-ordinate jurisdiction; concluding that as a matter of judicial comity it should follow the decision unless convinced that it is wrong. In judicial review the principle of stare decisis required that, although not bound to do so, the court would follow a decision of a judge of equal jurisdiction unless the decision appeared to be clearly wrong. As for the divisional court, Goff LJ said that it would only be "in rare cases that a divisional court will think it fit to depart from a decision of another divisional court exercising this jurisdiction".

 
Samick Lines Co Ltd v Owners of The Antonis P Lemos [1985] AC 711
2 Jan 1985
HL
Lord Brandon of Oakbrook
Litigation Practice
The House was asked as to the effect of the section. Held: Since the provisions of the statute under consideration were designed to give domestic effect to an international convention, a broad and liberal construction should be given to them
Supreme Court Act 1981 20(2)(h)
1 Cites

1 Citers



 
 Anderson v City of Bessemer City, North Carolina; 19-Mar-1985 - 470 US 564 (1985); 53 USLW 4314; [1985] USSC 57; 105 SCt 1504; 84 L Ed 2d 518
 
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 1 WLR 647; [1985] 2 All ER 225; [1985] UKHL 13; [1985] FLR 894
25 Apr 1985
HL
Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Diplock, Lord Edmund-Davies, Lord Bridge of Harwich
Litigation Practice, Children
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal. Held: The epithet "wrong" is to be applied to the substance of the decision made by the lower court. "Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong', 'plainly wrong', or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible".
Lord Fraser of Tullybelton said: "The reason for the limited role of The Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343 apply." and
After quoting Asquith LJ, Lord Fraser continued: "I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge."
1 Cites

1 Citers

[ Bailii ]
 
re Regent Hotels (UK) Ltd v Pageguide Ltd Times, 13 May 1985; Unreported, 10 May 1985
10 May 1985
CA

Litigation Practice, Contract
The court was concerned with a long-term management contract for the Dorchester Hotel between Regent as managers and Pageguide. When Regent sold the hotel to Pageguide the management contract would continue and be novated (with some amendment) as between Regent and Pageguide. Pageguide sought to cancel the management contract alleging serious and fundamental breach. Injunctive relief was granted restraining Pageguide "from taking any steps to prevent or hinder [Regent] from performing their function of the management and operation of the Dorchester Hotel in accordance with the management agreement". It was conceded that there was no rule of law precluding specific performance, but counsel for Regent identified principles based on public policy, fairness and practical convenience which militated against the relief sought. Under the heading of public policy, he identified both moral and economic grounds, referring in each context to the breakdown of trust and confidence which Pageguide was asserting. Held: The Court of Appeal refused to accept counsel's argument that no injunction was appropriate because there had been a breakdown of trust and confidence was that this was in issue. Regent's case was the Pageguide was acting cynically and in bad faith, for pure financial or business motives. But the court also said this: "Leaving aside the factual issue as to whether Pageguide would be able to establish that they have lost confidence in the Regent companies, in regard to which there is, in my judgment, a serious question to be tried, this action raises the further serious question, as yet unresolved by English authority, as to the extent to which a commercial arrangement of this kind between two independent companies, which does not provide for the employment of any named individuals and is part of a larger package including the sale of the hotel itself, can be properly treated as analogous to a contract of personal service. There are, however, two commonwealth decisions, one from Canada and one from Singapore, both of which were concerned with attempts by hotel owners to terminate long-term management contracts and in both cases the courts granted interlocutory relief. The Canadian case went to the Court of Appeal of Montreal which affirmed the decision: Loewess Hotel Montreal v Concordia City Properties [1979]. In the Singapore case, Holiday Inns v Holiday Enterprises [1975] the court expressly contemplated that specific performance was available."
1 Citers



 
 Precision Dippings Ltd v Precision Dippings Marketing Ltd and Others; CA 10-Jul-1985 - [1985] EWCA Civ 21

 
 Columbia Pictures Industries Inc v Robinson; ChD 1986 - [1987] Ch 38; [1986] 3 WLR 542; [1986] FSR 367; [1986] 3 All ER 338
 
Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657
1986
CA
Mustill LJ
Litigation Practice
There is a general principle of the law as to injunctions that the court should not put itself in the position of making orders which it cannot enforce against the person or assets of a defendant.
1 Citers


 
Winch v Jones [1986] QB 296
1986
CA
Sir John Donaldson MR
Health, Litigation Practice
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: "section 139 protects the defendant unless and until the applicant obtains leave. This in itself is an added protection of considerable value [over and above the ordinary strike out provisions]. As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of the process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the [Mental Health] Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant's complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed." and "To be more specific, there are two fundamental difficulties. First, mental patients are liable, through no fault of their own, to have a distorted recollection of facts which can, on occasion, become pure fantasy. Second, the diagnosis and treatment of mental illness is not an exact science and severely divergent views are sometimes possible without any lack of reasonable care on the part of the doctor."
Mental Health Act 1983 8139
1 Citers


 
Re Evans [1986] 1 WLR 101
1986


Litigation Practice

1 Citers


 
Siporex Trade SA v Banque Indosuez [1986] 2 Lloyd's Rep 146
1986

Hirst J
Banking, Litigation Practice
An instrument was issued by a bank under an obligation in an international trade agreement to provide a performance bond. The instrument was described in correspondence between the parties and the bank as a performance bond. Held: "There is in my judgment no real hardship on the bank in imposing this strict liability to pay. A performance bond is a commercial instrument. No bank is obliged to enter into it unless they wish to and no doubt when they do so, they properly exact commercial terms and protect themselves by suitable cross-indemnities, such as were entered into in the present case."
1 Citers


 
Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The "Saudi Eagle" [1986] 2 Lloyds Rep 221
1986
CA
Sir Roger Ormrod
Litigation Practice
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend. Held: When comparing the test to be met by a defendant which required there to be "an arguable case", with the standard laid down in Evans in respect of a defendant seeking to set aside a regular judgment signed in default, the Evans case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. It must be more than merely arguable.
Sir Roger Ormrod: ". . . a defendant who is asking the Court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. (In Evans v. Bartlam there was an obvious defence under the Gaming Act and in Vann v. Awford a reasonable prospect of reducing the quantum of the claim.) Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff's assertion that there is no defence) were the same as that required to displace a regular judgment of the Court and with it the rights acquired by the plaintiff. In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The ´arguable' defence must carry some degree of conviction."
Rules of the Supreme Court Order 14
1 Citers


 
Al Nahkel for Contracting and Trading Ltd v Lowe [1986] QB 235
1986


Litigation Practice
A writ ne exeat regno could be granted when it would have the effect of preserving assets within the jurisdiction.
Debtors Act 1869
1 Citers



 
 South Shropshire District Council v Amos; CA 1986 - [1987] 1 All ER 340; [1986] 1 WLR 1271
 
Rolled Steel Products (Holdings) Ltd v British Steel Corporation and Others [1986] Ch 246
1986
CA
Slade LJ, Browne-Wilkinson LJ
Company, Litigation Practice
The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the receiver of the company could assert the invalidity of the transactions as against the defendant companies who had been party to the proposals, and had full knowledge that they were "not entered into by the plaintiff for any purpose of the plaintiff but were a gratuitous disposition of the property of the plaintiff". Complaint was also made as to the judge's eight month delay in handing down his judgment. Held: The court related six principles: "(1) The basic rule is that a company incorporated under the Companies Acts only has the capacity to do those acts which fall within its objects as set out in its memorandum of association or are reasonably incidental to the attainment or pursuit of those objects. Ultimately, therefore, the question whether a particular transaction is within or outside its capacity must depend on the true construction of the memorandum. (2) Nevertheless, if a particular act (such as each of the transactions of 22 January 1969 in the present case) is of a category which, on the true construction of the company’s memorandum, is capable of being performed as reasonably incidental to the attainment or pursuit of its objects, it will not be rendered ultra vires the company merely because in a particular instance its directors, in performing the act in its name, are in truth doing so for purposes other than those set out in its memorandum. Subject to any express restrictions on the relevant power which may be contained in the memorandum, the state of mind or knowledge of the persons managing the company’s affairs or of the persons dealing with it is irrelevant in considering questions of corporate capacity. (3) While due regard must be paid to any express conditions attached to or limitations on powers contained in a company’s memorandum (e.g. a power to borrow only up to a specified amount), the court will not ordinarily construe a statement in a memorandum that a particular power is exercisable “for the purposes of the company” as a condition limiting the company’s corporate capacity to exercise the power; it will regard it as simply imposing a limit on the authority of the directors: see the David Payne case [1904] 2 Ch 608. (4) At least in default of the unanimous consent of all the shareholders (as to which see below), the directors of a company will not have actual authority from the company to exercise any express or implied power other than for the purposes of the company as set out in its memorandum of association. (5) A company holds out its directors as having ostensible authority to bind the company to any transaction which falls within the powers expressly or impliedly conferred on it by its memorandum of association. Unless he is put on notice to the contrary, a person dealing in good faith with a company which is carrying on an intra vires business is entitled to assume that its directors are properly exercising such powers for the purposes of the company as set out in its memorandum. Correspondingly, such a person in such circumstances can hold the company to any transaction of this nature. (6) If, however, a person dealing with a company is on notice that the directors are exercising the relevant power for purposes other than the purposes of the company, he cannot rely on the ostensible authority of the directors and, on ordinary principles of agency, cannot hold the company to the transaction."
Lawton LJ discussed the proper approach where it was questioned whether a case was being run on the pleadings: "I wish however to add a comment about the pleading points which have had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge, I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points.
My recent experience in this court shows that some counsel and judges are not giving pleadings the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation, they are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and the defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led.
Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as Mr Morritt did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. The principles upon which amendments should be allowed are well known and are set out in the current edition of the Supreme Court practice."
1 Citers


 
Siporex Trade SA v Comdel Commodities [1986] 2 Lloyds LR 428
1986

Bingham J
Jurisdiction, Litigation Practice
The court should not absolve a defaulting party from the consequences of its neglect by maintaining a Mareva injunction order in force.
1 Citers


 
Ashtiani v Kashi [1986] 2 All ER 970
1986
CA
Kerr LJ
Litigation Practice
On the grant of a Mareva injunction, the defendant had disclosed assets outside the jurisdiction in bank accounts in Europe. The plaintiff then obtained injunctions relating to those assets. The defendant obtained the discharge of those orders on undertaking not to dispose of assets within the jurisdiction. The plaintiff appealed. Held: The appeal failed. A Mareva injunction must be limited to assets located within the jurisdiction.
1 Citers


 
Colpitt v Australian Communications (1986) 9 FCR 52
1986

Burchett J
Litigation Practice
The word "review" means a rehearing which may pronounce anew the rights of the parties.
1 Citers



 
 Practice Note; CA 1986 - [1986] 1 WLR 948

 
 Hussain v Hussain; CA 1986 - [1986] Fam 134; [1986] 2 WLR 801; [1986] 1 All ER 961
 
Regina v Crown Court at Knightsbridge ex parte Commission of Custom and Excise [1986] Crim LR 194
1986
QBD

Litigation Practice
The defendant had appealed against his conviction to the Crown Court, but then given notice under rule 11 of his abandonment of the appeal. A few months later a Crown Court judge allowed an application for its re-instatement. Held: The appeal against re-instatement was allowed. The court identified the jurisdiction to permit an argument that abandonment is a nullity in certain circumstances. Re-instatement should only be allowed where the abandonment itself could be seen as a nullity.
Crown Court Rules 11
1 Citers



 
 Hitachi Sales UK Limited v Matsui Osk Lines Ltd; CA 1986 - [1986] 2 Lloyd's Law Report 574
 
Goddard v Nationwide Building Society [1987] 1 QB 670; [1986] 3 WLR 734
1986
CA
Nourse, May LJJ
Legal Professions, Litigation Practice, Equity
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defednant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence. Held: The defendant's appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
May LJ said: "I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them."
Nourse LJ said: "The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary."
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief "does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come" Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the the materiality of the communication or the justice of admitting or excluding it or like considerations: "The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay."
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: "A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected."
1 Cites

1 Citers



 
 Pittalis v Sherefettin; CA 1986 - [1986] 1 QB 868
 
Ex parte Waldron [1986] 1 QB 824
1986
CA
Ackner, Neill and Glidewell LJJ
Health, Litigation Practice
The court was asked whether section 139 precluded a mental patient from applying for leave to move for judicial review. Held. A restriction on the bringing of civil or criminal proceedings imposed by the section 139 did not apply to proceedings for judicial review. Ackner LJ concluded that Parliament had not intended to bar the court's supervisory jurisdiction "because, had it done so, there would indeed have been no remedy to quash a compulsory admission to hospital made a result of a reasonable misconstruction of a public official's powers" and that this "would have disclosed a serious inadequacy in the power of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law."
Mental Health Act 1983 139
1 Citers


 
Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd [1986] 33 BLR 77
1986
CA
Lloyd LJ and May LJ
Construction, Limitation, Litigation Practice
The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. Allegations were made against the contractors and the architects and also structural engineers. The question then arose whether the amendments raised new claims for the purposes of section 35 of the 1980 Act. Held: May LJ said: "I think it is necessary to adopt a broad approach to these cases. At the stage of the issue of the writ or the service of the statement of claim, in the present context one is not, as I think, concerned with the minutiae of the cause of action which will ultimately have to be investigated at the trial. In the Limitation Act context, one asks in quite broad terms whether the relevant factual situation . . first came about, first was suable upon more than the three, six or twelve years previously. In the res judicata context one has to ask whether the issues in the hypothetical second action were realistically before the court in the hypothetical first action. Merely to rely upon the propositions which I have already quoted from Brunsden v Humphrey in the judgment of Bowen LJ, which was referred to in the judgment of Sankey LJ in Conquer v Boot , that it is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all, (entirely accurate though that is and I would not wish, with respect, to differ at all), nevertheless in the instant context I think that it effectively begs the whole question at the outset."
and "In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed reamendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement of claim in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building, does not necessarily mean in any way that they are constituents of one and the same cause of action.
Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied the law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case."
and "In my opinion, to issue a writ against a party . . when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court."
Lloyd LJ said: "in each case it will depend on the facts whether the damage gives rise to a separate cause of action, or not" and "there may be separate causes of action in relation to the same building, depending upon the facts of the case."
Limitation Act 1980 35
1 Citers


 
Warman International Ltd and Others v Envirotech Australia Pty Ltd and Others (1986) 57 ALR 253
1986

Wilcox J
Litigation Practice, Commonwealth
(Australia High Court) The court considered an application that the privilege against self incrimination be allowed to prevent a requirement to produce documents at court under a sub-poena: "Production is to the Court. Unless and until the contents of the documents is made known to a person who is reasonably likely to use those documents for the purpose of a criminal prosecution, no self-incrimination can occur."
1 Citers


 
Saunders v Edwards [1987] 1 WLR 1116; [1987] 2 All ER 651; [1986] Ch 638; [1986] EWCA Civ 4
24 Mar 1986
CA
Bingham LJ, Kerr LJ, Nicholls LJ
Litigation Practice, Contract
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action shoud fail since the contract was tainted with the fraud. Held: The defence failed. The misrepresentation was not part of the contract itself, and was therefore not affected by the plea of ex turpi causa non oritur actio. The purchasers' dishonest apportionment of the price was wholly unconnected with their cause of action and that their moral culpability in that regard was greatly outweighed by that of the vendor in making the fraudulent representation.
Bingham LJ said: "Where issues of illegality are raised, the courts have … to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct." and "the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff’s action in truth arises directly ex turpi causa he is likely to fail . . . Where the plaintiff has suffered a genuine wrong, to which the allegedly unlawful conduct is incidental, he is likely to succeed."
Kerr LJ:- "However, the present action, unlike Alexander -v- Rayson, is not brought on the contract, but on the tort of deceit based on the defendant's fraudulent misrepresentation. I therefore do not propose to consider what would have been the position if, for instance, the defendant had declined to complete in this case and the plaintiffs had sought to sue on the contract, either for specific performance or for damages." but "But the full picture is more complex, as shown by two more recent cases to which we were also referred. I will not analyse them in detail, but they show that there are no rigid rules for or against the application of the ex turpi causa defence. This is not surprising, since it involves issues of public policy. To some extent these must depend on the circumstances of each case." and
". . . the conduct and relative moral culpability of the parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied as a matter of public policy."
1 Citers

[ Bailii ]
 
Vann v Awford Unreported, 18 April 1986
18 Apr 1986
CA

Litigation Practice
The Court set aside the judgment on the application of the defendant, despite the fact that that he had, in his own account of the matter, lied on affidavit. Weighing the defence on the merits against possible prejudice to the plaintiffs, the Court applied the principle that it would not wish to let a judgment pass on which there had been no proper adjudication.
1 Citers


 
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
30 Apr 1986

Brennan J
Litigation Practice, Commonwealth, Family
The parties disputed a settlement of property on divorce, and on appeal the court had to consider how it should approach a judgment made at the discretion of the judge at first instance. Held. After citing Bellendon, Brennan J added: "The 'generous ambit within which reasonable disagreement is possible' is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference."
1 Cites

[ Austlii ]
 
Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd [1987] 1 Lloyd's Rep 207; [1986] UKPC 57
10 Dec 1986
PC
Lord Goff of Chievely
Litigation Practice, Commonwealth
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord Goff of Chievely discussed the fact finding task of a judge: "And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57:- "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence."
In that context he was impressed by a witness described in the following terms: "Although like the other main witnesses his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable." That is so important, and so infrequently done."
1 Cites

1 Citers

[ Bailii ]
 
Pemberton v Chappell [1987] 1 NZLR 1 CA; (1986) 1 PRNZ 183; CA123/86; [1986] NZCA 112
12 Dec 1986

Somers, Casey, Hillyer JJ
Commonwealth, Litigation Practice
Court of Appeal of New Zealand - The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.
1 Citers

[ Nzlii ]
 
Polivite Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyds Rep 279
1987

Garland J
Litigation Practice
An expert must act giving "independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise."
1 Citers



 
 Reckitt and Coleman Properties Ltd v Borden Inc; 1987 - [1987] FSR 407
 
The Mito [1987] 2 Lloyd's Rep 197
1987

Hirst J
Litigation Practice
The court discussed the requirement of undertakings in damages from a party seeking an interim injunction: "When such security is originally sought it is sought as a condition for the grant of the injunction, in other words the plaintiff is told if you want this injunction you have to pay the price by fortifying the undertaking to damages. The plaintiff can then either agree or disqualify himself in obtaining the injunction…Mr McClure says that the plaintiff has already paid a price here when the cross-undertaking was given, which is perfectly correct as far as it goes. The plaintiffs did not ever agree nor were they ever asked to pay the extra price that is the fortification of the undertaking. If they had been asked to do so, it may very well be that they would…have declined to take an injunction. Of course, Mr McClure accepts, as he must, that the court has no power to impose an undertaking on the plaintiffs and herein I think if I were to make this order I would in essence ex post facto be imposing a conditional term to the undertaking without any knowledge one way or the other as to what the situation would have been if it had been sought by the defendant in the first place. That is something which I think is wrong in principle to do."
1 Citers



 
 In re State of Norway's Application (No 1); CA 1987 - [1987] 1 QB 433

 
 Ainsbury v Millington (Note); HL 1987 - [1987] 1 WLR 379
 
LT Piver Sarl v S and J Perfume Co Ltd [1987] FSR 159
1987


Litigation Practice
A plaintiff's representative saw an article on premises which he was inspecting pursuant to an Anton Piller order which he thought infringed the rights of third parties. Held: He was at liberty to report this to the third party concerned.
1 Citers



 
 Chandler v Church; 1987 - (1987) 177 NLJ 451

 
 English and American Insurance Co Ltd and Others v Herbert Smith; ChD 1987 - (1987) NLJ 148; Times, 22 January 1987; [1988] FSR 232

 
 Manku v Seehra; OR 1987 - (1987) 7 Con LR 90

 
 Films Rover International Ltd v Cannon Film Sales Ltd; 1987 - [1987] 1 WLR 670

 
 South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV; HL 1987 - [1987] AC 24; [1986] 3 WLR 398; [1986] 3 A11 ER 487; [1986] 2 Lloyds Rep 317
 
Burnet v Francis Industries plc [1987] 1 WLR 802
1987
CA

Litigation Practice
Where a judgment debt was owed by a subsidiary company to a third party, and where the subsidiary's parent company had a claim against the same third party, the court had jurisdiction to order a stay of execution of the judgment.

 
R A Lister Ltd v Thompson (Shipping) Ltd [1987] 3 All ER 1032
1987


Litigation Practice
When asking whether a liability remained to support a claim, after a compromise, a relevant liability would include a future liability imposed by the court even if that had not yet been assessed.
1 Citers


 
Naylor v Preston Health Authority [1987] 1 WLR 958; [1987] 2 All ER 353
1987
CA
Sir John Donaldson MR
Litigation Practice, Evidence
The purposes of discovery include not only obtaining relevant evidence, but also reducing surprise and promoting fairness by putting parties in an equal position at trial, so that the parties are "playing with all the cards face up on the table" the Master of the Rolls considered that there is 'a duty of candour resting on the professional man' and he concluded: "Accordingly the court has to have regard to all the circumstances although, in the nature of things, they are likely to be different in medical cases when contrasted, for example, with those involving barristers, solicitors, surveyors or accountants. The exercise of discretion has to be approached on the basis of the philosophy that the basic objective is always the achievement of true justice, which takes account of time, money and what can only be described as the anguish of uncertainty, as well as of a just outcome. It has to be exercised on the basis that the procedure of the courts must be, and is, intended to achieve the resolution of disputes by a variety of methods, of which a resolution by judgment is but one, and probably the least desirable. Accordingly anything which enables the parties to appreciate the true strength or weakness of their positions at the earliest possible moment and at the save time enables them to enter upon fully informed and realistic discussions designed to achieve a consensual resolution of dispute is very much in the public interest. "
1 Citers



 
 SCF Finance Co Ltd v Masri (No 3); 1987 - [1987] QB 1028
 
Barnet v Crozier [1987] 1 WLR 272
1987
CA
Ralph Gibson LJ
Litigation Practice, Defamation
The court considered an application by a third party to proceedings to prevent a statement being read out in open court in defamation proceedings. Justification had originally been pleaded by both defendants but, as part of a settlement with the second defendant the Spectator accepted that the libel could not be justified and withdrew that defence. The other defendant in the case was a journalist who was maintaining his justification defence. The journalist sought to oppose the reading of a statement in open court on the footing that it was unfair to him, particularly bearing in mind that the defence of justification was still being run and that it would be unfair on him to have the justification claim effectively conceded by the other defendant.
Ralph Gibson LJ said: ""Parties to an action do not need the consent of the court to make an effective settlement of their dispute; nor do they need the consent of the court to announce to the world that they have settled it on stated terms. The importance of the making of a statement in open court is, first, that it is likely to come to the attention of the press, who will give to it such attention as its public interest is seen by them to merit and, secondly, since the statement is part of a judicial proceeding, it is made on an occasion of absolute privilege. Thus, the parties to the statement are protected and, moreover, the statement can be reported without the publisher of the report incurring the risk of being sued in respect of it . .
It seems to me that an opportunity to make a statement in open court was thus seen more than 50 years ago as something which was an incident, or part of the available procedure, in a defamation action which the plaintiff was at least entitled to expect to be available to him, provided that the terms of the statement were approved by the judge and there was nothing in the case which made it unfair to another party to the statement to be made.
The present rule, RSC, Ord 82, r.5, which derives from the previous RSC, Ord 22, r.2 introduced in 1933, provides for the making of a statement in open court with the leave of the judge, both when there has been acceptance of money paid in and when the action is settled before trial without a payment into court.
The judge was right, in my view, to regard the settlement of proceedings as a public good which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. Although a party has no right to make a statement in open court upon which he can insist if the circumstances are such that the judge cannot in his discretion approve that course, it seems to me that parties who have made a bona fide settlement of a defamation action and ask leave to make a statement in open court may expect to be allowed to do so unless some sufficient reason appears on the material before the judge why leave should be refused to them. By saying that he did not regard either party as having a burden of proof, while acknowledging that it is desirable for settlement to be facilitated, I think the judge meant, as he said, that he must have regard to the interests of all parties; but, if there is no sufficient reason to refuse it, a plaintiff who has reached a settlement with a defendant should be allowed to make an approved statement. I think the judge was right in his approach . .
Finally for the reasons already given, the opportunity to make a statement in open court is an incident of the court's procedure which parties who settle such an action can be expected to be allowed to use unless there is some sufficient reason to cause the court to refuse to approve that course."
1 Citers



 
 Hayim v Citibank NA; PC 1987 - [1987] 1 AC 730; [1987] 3 WLR 83

 
 Crest Homes Plc v Marks; HL 1987 - [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 48
 
Regina v Home Secretary, Ex parte Yeboah [1987] 1 WLR 1586
1987
CA
Sir Nicholas Browne-Wilkinson V-C
Litigation Practice
Sir Nicholas Browne-Wilkinson V-C spoke of section 7 of the 1978 Act: "If actual receipt is necessary to enable the addressee to take some necessary step, then the word "sent" in the principal Act will be construed to mean "received""
Interpretation Act 1978 7
1 Citers


 
Tay Bok Choon v Tahanson Sdn Bhd [1987] 1 WLR 413; [1987] BCLC 472
1987
PC
Lord Templeman
Company, Commonwealth, Evidence, Litigation Practice
A participant in the company was given the right to be involved in the management until a change should become necessary for some other reason.
In cases of fraud, direct evidence may be rare and circumstantial evidence may have to suffice,
Lord Templeman said: "In civil proceedings the trial judge has no power to dictate to a litigant what evidence he should tender. In winding up proceedings the trial judge cannot refuse to read affidavits which have been properly sworn, filed and produced to him unless some opposing party has applied for the attendance for cross-examination of the deponent and that application has been granted and the deponent does not attend. The court cannot give a direction about evidence unless one of the litigants desires such direction to be made. Of course a judge may indicate to a petitioner that unless he calls oral evidence or applies to cross-examine the deponents of the opposition so as to prove a disputed fact, his petition is likely to fail. The judge may equally indicate to a respondent that unless he calls oral evidence or applies to cross-examine the petitioner's deponents for the purposes of disproving an allegation made by the petitioner, then the petitioner is likely to succeed. At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts.
1 Citers


 
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; [1987] CLY 3060
1987
CA
Slade LJ
Litigation Practice
Slade LJ referred to Nourse LJ's judgment in Goddard, and said that the court "should ordinarily intervene in such cases, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy."
1 Cites

1 Citers


 
Gulf Oil (Great Britain) Limited v Page [1987] 1 Ch 327
1987
CA
Parker LJ, Nicholas Browne-Wilkinson V-C
Torts - Other, Litigation Practice
The plaintiff had contracted exclusively to supply to the defendants owners of petrol stations. On arrears arising, the plaintiff discontinued deliveries save on cash on delivery and direct debit terms. The defendants obtained supplies from another source and the plaintiff terminated the agreement. There then followed proceedings which the defendants lost in court and which were the subject of an appeal. While the appeal was pending the defendant circulated leaflets to several of the plaintiff's customers, giving an account of the litigation and judgment. Also, when the plaintiff was entertaining customers at a hospitality tent at the Cheltenham Gold Cup race meeting, the defendant flew a light aircraft over the racecourse, displaying a banner with the words "Gulf Exposed in Fundamental Breach". Held: The court granted an injunction in conspiracy which enabled the plaintiff to circumvent the rule in Bonnard v Perryman, but Parker LJ said that the court "would require to be satisfied that [a claim in conspiracy] was not merely an attempt to circumvent the rule in defamation".
"It is true that there is no wrong done if what is published is true provided it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination in publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy, there is therefore, a potential wrong, even if it is admitted as it is in the present case, that the publication is true and thus that there is no question of a course of action in defamation. In such a case the court can, and should not proceed on the same principle as it would in the case of any other tort.
The prospect that this would open the floodgates and reverse the principle applicable in libel actions is, in my view unreal, a plaintiff against the author and publisher of a newspaper article, for example, might well establish a combination, but it appears to me that it would only be in the rarest case that sufficient evidence of a dominant purpose to injure could be made out to warrant the ground of interlocutory relief, and I have no doubt that the court would scrutinise with the greatest care any case where a course of action in conspiracy was joined to a course of action in defamation and would require to be satisfied that such joinder was not merely an attempt to circumvent the rule in defamation".
1 Cites

1 Citers


 
Morris v London Iron and Steel Co Ltd [1987] 2 All E R; [1998] QB 493
1987
CA
May LJ
Litigation Practice
In exceptional cases, a judge conscientiously seeking to decide the issues between the parties might have to conclude 'I just do not know'.
1 Cites

1 Citers



 
 Ketteman v Hansel Properties Ltd; HL 1987 - [1987] 2 WLR 312; [1987] AC 189
 
Balston Ltd v Headline Filters Ltd and Another [1987] FSR 330
1987

Scott J
Employment, Litigation Practice
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an interlocutory injunction. Held: The second defendant was free to set up such a business even whilst employed by the plaintiff. Though he might be in breach of contract by soliciting customers in the way he had, this was not an issue suitable for the interlocutary relief sought. A court should be careful to find a balance between the plaintiff's rights over its own confidential material, and the defendant's right to make use of his technical knowledge and experience to make his living.
Scott J discussed the enforcement of restrictive covenants in employment contracts: "The use of confidential information restrictions in order to fetter the ability of these employees to use their skills and experience after determination of their employment to compete with their ex-employer is, in my view, potentially harmful. It would be capable of imposing a new form of servitude or serfdom, to use Cumming-Bruce LJ's words [in G D Searle & Co Ltd v Celltech Ltd [1982] FSR 92], on technologically qualified employees. It would render them unable in practice to leave their employment for want of an ability to use their skills and experience after leaving. Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject."
As to the use of injunctions: "These past breaches of duty . . cannot, in my judgment, sustain an interlocutory injunction on their own account. Whether an injunction, interlocutory or otherwise, can ever be justified on the ground that the grant is necessary in order to deprive a contract breaker of the fruits of his breach of contract, I regard as highly questionable."
1 Cites

1 Citers



 
 Regina v Secretary of State for the Home Department, Ex parte Turkoglu; CA 1987 - [1988] 1 QB 398; [1987] 2 All ER 823
 
Pollivitte Ltd v Commercial Union Assurance Company Plc (1987) 1 Lloyds Rep 379
1987

Garland J
Litigation Practice, Torts - Other
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.
1 Citers


 
P and M Sinclair v The Bamber Gray Partnership 1987 SC 203
1987

Lord Prosser
Litigation Practice, Scotland
A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate.
1 Citers



 
 Deighan v Sunday Newspapers Limited; QBNI 1987 - [1987] NI 105

 
 Barder v Caluori; HL 2-Jan-1987 - [1988] AC 20; [1987] 2 All ER 440; [1987] 2 WLR 1350; [1988] Fam Law 18
 
Duke v GEC Reliance Systems Limited [1988] QB 108
16 Feb 1987
CA
Lord Donaldson MR
Litigation Practice, European
The court was said to have failed to have proper regard to a European Directive.
The court discussed the meaning of the phrase 'per incuriam': "I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the court had this material, it must have reached a contrary decision . . I do not understand the doctrine to extend to a case where, if different arguments had been placed before it, or if different material had been placed before it, it might have reached a different conclusion."
1 Cites

1 Citers


 
Atkinson v Fitzwalter [1987] 1 All ER 483; Gazette, 25 March 1987; [1987] 1 WLR 201
25 Mar 1987
CA
Parker LJ
Litigation Practice
A court should not grant leave to amend a pleading into a form which is liable to be struck out. The more serious the allegation that is made, the more clearly satisfied must the Court be that no prejudice will be caused that cannot be compensated for in some satisfactory way, before allowing a proposed amendment.
Parker LJ said: "A defendant is entitled to rely in mitigation of damages on any evidence which is properly before the jury and this can include evidence in support of an unsuccessful plea of justification: see the judgment of Neill LJ in Pamplin v Express Newspapers Limited"
1 Cites

1 Citers



 
 Indian Oil Corporation v Greenstone Shipping SA; QBD 23-Apr-1987 - [1988] 1 QB 345; Times, 23 April 1987
 
Autexpo v Commission C-82/87 C-82/87; [1987] EUECJ C-82/87R
8 May 1987
ECJ

Litigation Practice
Order - 1. As a condition for the grant of an interim measure suspending the operation of a decision, article 83(2) of the rules of procedure requires that an application for such a measure must state the factual and legal grounds establishing a prima facie case for the interim measure applied for and the circumstances giving rise to urgency. The urgency required in regard to an application for interim measures must be assessed in the light of the need to adopt such measures in order to avoid serious and irreparable damage to the party requesting those measures.
2. The issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures but should be reserved for the examination of the main application so as not to prejudge the substance of the case; however, where an objection is raised that the main application to which the application for interim measures is an adjunct is manifestly inadmissible, it is necessary to establish the existence of certain factors which support the conclusion that the main application is prima facie admissible.
[ Bailii ]
 
Joyce v King Times, 13 July 1987
6 Jul 1987
CA
Woolf LJ
Litigation Practice
An appeal was made against a refusal of an adjournment. Held: Although the question of whether to grant an adjournment is essentially a matter of discretion, only if the decision refusing to grant an adjournment was wholly wrong should the Court of Appeal interfere. If it is not possible to obtain justice without an adjournment, then, regardless of the inconvenience thereby occasioned, the adjournment should be granted. Woolf LJ: "It would have been perfectly proper for Mrs. King [the applicant] perhaps to have been subject to an a order for costs which made her liable for the costs of the adjournment in any event." and "As is apparent as a result of a further application which is before this court by Mrs. King, which it is not necessary for the court to deal with specifically, (Mrs. Kings is - she will forgive me saying so - a somewhat eccentric lady) and without the assistance of a surveyor it is quite clear that she had no prospects whatsoever of properly putting her case before the court. However, in the absence of Mr. Allen, the recorder took the greatest care, insofar as it was possible for him to do so, to investigate the plaintiffs' claim. But, having investigated the plaintiffs' claim, he came to the conclusion it was fully made out.
In my view the situation was one where it was quite impossible for justice to be done to Mrs. King once the decision had been taken to refuse an adjournment. In my view this is one of the exceptional cases where, while it is understandable that the learned recorder should have taken the view he did about the adjournment, his decision was clearly wrong. The balance of justice in favour of granting the adjournment was of a different proportion to the hardship if any which would be caused to the plaintiffs if an adjournment was granted. This was one of those unfortunate situations which the courts are faced with from time to time, where there is really no alternative if justice is to be done but to grant an adjournment, albeit that it is highly inconvenient and highly frustrating to the courts if that course is taken."
1 Citers


 
White v Fell Unreported, 12 November 1987
12 Nov 1987

Boreham J
Health, Litigation Practice
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence. Held: There are three features to which it is appropriate to have regard when assessing a person's mental capacity: "The expression 'incapable of managing her own affairs and property' must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided . . . It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . . . Secondly, having identified the problem it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . . . Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive."
1 Citers


 
Hollingsworth v Humphrey Unreported, 10-Dec-87
10 Dec 1987
CA
Fox LJ
Litigation Practice, Contract
The parties disputed the effect of a Tomlin order, an order made by the court that stayed the proceedings on the terms of a compromise "except for the purpose of carrying the said terms into effect". The defendant had failed to honour the contract and the judge awarded damages against him. Held: The defendant's appel succeeded. Fox LJ: "It was not open to the judge to make an award of damages
It seems to me that under the terms of the Tomlin order the only jurisdiction that he had in this action to make an order for the purpose of carrying into effect the terms of the compromise. An award of damages is not carrying the terms into effect. It is granting a remedy for breach of contract. In my view any claim by Mrs Hollingsworth for breach of contract must be pursued in a separate action."
1 Citers


 
Holmes v Bangladesh Binan Corporation [1988] 2 LLRep 120; [1988] 2 Lloyds Rep 120
1988

Bingham LJ
Litigation Practice
An appeal was sought from a judge's order deciding a preliminary issue of law. The claimant sought damages under the Fatal Accidents Act case. Held: Bingham LJ said: "Order 33, r. 3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory simply because it will not be finally determinative of the action whichever way it goes. Instead, a broad commonsense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline's favour, have ended the action."
1 Cites

1 Citers


 
Interpool Ltd v Galani [1988] QB 738
1988
CA
Balcombe LJ, Lloyd LJ
Litigation Practice
The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under Order 48 of the Rules of the Supreme Court. Held: the Court of Appeal dismissed the appeal. The use of Order 48, in English enforcement proceedings, in order to discover the existence of foreign assets, does not confer, or purport to confer, jurisdiction on the English court in relation to enforcement proceedings in any other country in which those assets may be situate. Whereas Order 49 rule 1 required that the garnishee must be in the jurisdiction, there is no similar limitation that the garnished debt must be properly recoverable within the jurisdiction.
Balcombe LJ said: "The use of Order 48, in English enforcement proceedings, in order to discover the existence of foreign assets, does not confer, or purport to confer, jurisdiction on the English court in relation to enforcement proceedings in any other country in which those assets may be situ." and “It is true that, as a matter of discretion, the court will not garnish a debt where the garnishee, although within the jurisdiction, is not indebted within the jurisdiction, if to do so might expose the garnishee to the risk of having to pay the debt or part of the debt twice over. It may also be true, as Mr Jones submitted, that there is no reported case where this discretion has been exercised so as to garnish a debt which is only recoverable outside the jurisdiction. Nevertheless, if the court has jurisdiction to garnish a debt recoverable outside the jurisdiction, even though as a matter of discretion it is unlikely to exercise that jurisdiction, it seems to us that there must be power under Order 48 to discover the existence of such debts."
1 Cites

1 Citers


 
Lloyds Bowmaker Ltd v Britannia Arrow Holdings Plc [1988] 1 WLR 1337
1988
CA
Lord Justice Glidewell, Lord Justice Dillon
Litigation Practice
It is the duty of a plaintiff who has obtained an interlocutory injunction to proceed to trial and not simply to sit back and rely upon the injunction until such time as the defendant moves to discharge it. The court have stressed the importance of prompt progress to trial in a case where a claimant has had the distinct benefit of freezing orders or search and seizure orders.
1 Citers


 
Haarhaus v Law Debenture Trust Corporation [1988] BCLC 640
1988
ChD
Hirst J
Litigation Practice
The plaintiffs brought an action on behalf of themselves and all other holders of promissory notes issued by a Nigerian Bank to restrain the trustee of the noteholders' trust deed, from publishing details as to the votes cast at a meeting of noteholders. Held: The figures indicated such a difference of opinion as to preclude a common grievance and relief beneficial to all noteholders. He ordered that the action might not be continued in a representative capacity.
1 Citers


 
Allied Arab Bank Ltd v Hajjar [1988] QB 787
1988


Litigation Practice
A court refuse a writ ne exeat regno where he purpose was not directly to pursue the main court action, but rather to support an injunction. Instead the court ordered the defendant to surrender his passport which left him at large within the UK, but unable to leave it.
Debtors Act 1869
1 Citers


 
Barder v Barder; Barder v Caluori [1988] AC 20; [1987] 2 All ER 440; [1987] 2 WLR 1350; [1988] Fam Law 18
1988
HL
Lord Brandon
Litigation Practice, Family
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal. Held: The House described the conditions for appealing an order made by consent. A consent order in an ancillary relief case could be set aside on the ground that there had been a supervening event which had led to such a change of circumstances as to undermine or invalidate the basis of the consent order: "new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed . . the new events should have occurred within a relatively short time of the order having been made . . the application for leave to appeal out of time should be made reasonably promptly and third parties should not be adversely affected." Lord Brandon reviewed the case law and said: "I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934."
1 Cites

1 Citers


 
The Sky One [1988] 1 Lloyds Rep 238
1988

Honhouse J
Litigation Practice
RSC O.11, r.6(3)) did not provide exclusive methods of service. Service might be effected by private means rather than through the methods set out there, provided always that nothing was done in the country where service was to be effected which was contrary to the law of that country. Under Swiss law it was contrary to serve proceedings privately, and although the court had a discretion to cure the default, it would require a very strong case to exercise the discretion to allow service to stand where it was expressly prohibited.
1 Citers


 
Goldman v Hesper [1988] 1 WLR 1238
1988


Litigation Practice
The court has power in costs proceedings to order the receiving party to disclose such documents, orginally to the court, as are necessary to make its decision. Held: It would be rare to exercise this discretion.
Rules of the Supreme Court Order 62, rule 29
1 Citers


 
Business Computers International Ltd v Registrar of Companies [1988] Ch 229; [1987] 3 All ER 465; [1987] 3 WLR 1134
1988
ChD
Scott J
Litigation Practice, Negligence
A winding up petition was served at an address which was not that of the plaintiff's registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved the petition in negligence in respect of the losses said to have been sustained as a result of the order. Held: The claim failed.
There is an inherently antagonistic relationship between adverse litigants which makes it inappropriate for the law to recognise a duty of care by one adverse party, or his legal representative, to another party. The safeguards in such a case must be found in the rules and procedures that govern litigation.
Scott J said: "Is it just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process? I do not think that it is. The plaintiff and the defendant, the petitioner and the respondent, are antagonists. The plaintiff, or the petitioner, is seeking a legal remedy in an adversarial system. The system stipulates the rules and requirements that must be observed by the two parties. The plaintiff must issue his process and must serve it on the defendant. If there is default in service the process must be struck out. If an order is obtained without the prescribed rules or regulations having been observed, the order may be discharged or set aside, sometimes by an application at first instance, sometimes on appeal. The prosecution of the action or of the petition is subject throughout its career from institution to final judgment to judicial control. Service of process is a step, in the prosecution. It must usually be proved before an order can be obtained against an absent defendant. The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd. The safeguards against ineffective service of process ought to be, and I think must be, found in the rules and procedures that govern litigation. The rules and procedures require that, save on ex parte applications, proof of service be shown before an order is made against an absent party. If the proof of service is false, be it through negligence or design, an order may be made that should not have been made. The injured party's remedy is to have the order set aside. An action for damages cannot be based on the falsity of the proof of service. Nor, in my judgment, can the adequacy of the efforts made to effect service be subjected to a tortious duty of care." and "In my judgment, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort. I am therefore of opinion that the plaintiff's statement of claim does not disclose a reasonable cause of action against the second defendant and ought to be struck out."
1 Citers


 
Hemain v Hemain [1988] 2 FLR 388
1988


Family, Litigation Practice
The court confirmed its the power to grant a temporary injunction restraining the party from pursuing proceedings in a foreign jurisdiction to prevent that party from obtaining unfair advantage. The injunction would typically preserve the status quo pending an application or trial.
1 Citers


 
Re Jogia (A Bankrupt) [1988] 1 WLR 484; [1988] 2 All ER 328
1988

Nicolas Browne-Wilkinson V-C
Insolvency, Litigation Practice
Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order. Held: A plaintiff who has been given permission to serve out cannot resist an application challenging the jurisdiction by pleading a new cause of action. A claim for unjust enrichment, in the absence of a contractual relationship between the parties, and other than claims to land, are governed by the law of the place of enrichment.
Sir Nicolas Browne-Wilkinson V-C said (obiter): "As at present advised, I am of the view that quasi-contactual obligations of this kind arise from the receipt of the money. I find it difficult to see how such obligation can be said to be 'made' or 'arise' in any place other than that of receipt. As to the proper law, Dicey & Morris, the Conflict of Laws, 10th edn. (1980), p.921 expresses the view that, save in cases where the obligation to repay arises in connection with a contract or an immoveable, the proper law of the quasi-contact is the law of the country where the enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle."
1 Cites

1 Citers



 
 Regina v Secretary of State for Transport ex-parte Factortame and Others; CA 1988 - [1989] 2 CMLR 353
 
Brink's Mat Ltd v Elcombe [1988] 1WLR 1350
1988
CA
Balcombe LJ
Litigation Practice
An interim injunction had been obtained but on a flawed basis. A more limited injunction was now sought. Held: Balcombe LJ set out the principles to be applied: "The rule that an ex parte injunction will be discharged if it was obtained without full disclosure has a two-fold purpose. It will deprive the wrongdoer of an advantage improperly obtained … But it also serves as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty. Nevertheless, this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained … I make two comments on the exercise of this discretion. (1) Whilst, having regard to the purpose of the rule, the discretion is one to be exercised sparingly, I would not wish to define or limit the circumstances in which it may be exercised. (2) I agree with the views of Dillon LJ in [another case] that, if there is jurisdiction to grant a fresh injunction, then there must also be a discretion to refuse, in an appropriate case, to discharge the original injunction."
1 Citers



 
 Re T H Knitwear (Wholesale) Ltd; CA 1988 - [1988] Ch 275
 
The "Kilmun" [1988] 2 Lloyd's Rep 1
1988

Leggatt J
Litigation Practice
Although the giving of evidence by way of statements under the Civil Evidence Act 1968 was convenient, "it is obvious that it is not a satisfactory way of resolving disputed issues of fact".
Civil Evidence Act 1968
1 Citers


 
Weddell v JA Pearce and Major [1988] Ch 26
1988

Scott J
Litigation Practice
A cause of action in negligence was assigned in February 1986. The writ was issued by the assignee alone on 2 May 1986, at which time no notice of the assignment had been given to the defendants. It was argued that the action was a nullity. Held. It was not: "[A]n equitable assignee can sue in his own name. He cannot, however, recover damages or a perpetual injunction without joining as a party the assignor in whom legal title to the chose in action is vested. The same would apply to recovery of a debt. The reason for this is, however, a pragmatic one. The debtor must not be at risk of suit by the legal owner of the chose. To put the point another way, the debtor must, if he is adjudged liable, be in a position to obtain a complete discharge from his liability by paying the plaintiff, the equitable assignee."
1 Cites

1 Citers


 
Regina v Greater Manchester Council ex parte Worch [1988] 1 QB 513
1988

Slade LJ
Coroners, Litigation Practice
The court considered to what extent it could look to the form of an Act before it was amended in order to assist it in construing the Act as amended: "The original section 21(a) of the [Coroners (Amendment) Act] 1926 is no longer law, since it has been replaced by Section 23(3) of the Births and Deaths Registration Act 1953. Nevertheless, the original subsection is admissible in construing the section as a whole and, in our judgment, throws light on its construction. It demonstrates that the section as a whole contemplates a two-stage process".
Births and Deaths Registration Act 1953
1 Citers



 
 Wychavon District Council v Midlands (Special Events) Ltd; 1988 - [1988] 1 CMLR 397
 
Maclaine Watson and Co Ltd v International Tin Council (No. 2) [1989] Ch 286; [I988] 3 WLR 1 190
1988
CA

International, Litigation Practice
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court's inherent jurisdiction. Milled J. refused the application under 0.48 but granted it under section 37. The defendant appealed. Held: The Appeal failed. The Judge's decision under the Rules was correct. The order was made against a "proper officer" of the ITC. Being a non- corporate entity there were no officers in the technical sense or the sense in which that word is used in the case of corporations. The court considered the inherent jurisdiction to compel disclosure of assets abroad.
1 Citers


 
Main v McAndrew Wormald Ltd 1988 SLT 141
1988


Litigation Practice

1 Citers



 
 McGuiness v Kellogg Co of Great Britain Ltd; CA 1988 - [1988] 1 WLR 913
 
Morris v London Iron and Steel Co Ltd [1988] QB 493; [1987] 2 All ER 496; [1987] 3 WLR 836
1988
CA
May LJ, Sir Denys Buckley
Employment, Litigation Practice
The applicant claimed before an industrial tribunal that he had been unfairly dismissed. His former employer alleged that, instead of being dismissed, he had resigned. The tribunal rehearsed the rival evidence of dismissal and resignation, found that the probabilities were equally balanced and dismissed the application on the basis that the applicant had not discharged the burden of proof. Held: The tribunal was correct: "in the exceptional case" a judge confronted with an issue of fact might be in breach of his judicial duty to do other than to resort to the burden of proof. He rejected a submission that the tribunal "should have set out in much greater detail than it did its findings on other facts, its reasoning, its analysis of those facts, where that analysis had led it, and why in the end it found that it was unable to reach a conclusion one way or the other."
The purpose of the reasons was to tell the parties in broad terms why they had lost and won and to provide them with the materials which would enable them to know that it had made no error of law in reaching its findings of fact. There was no reason why, in the simple circumstances of that claim, the tribunal was obliged to provide any more detailed analysis of its reasoning than it had given.

 
Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) [1988] 1 WLR 16
1988
HL
Lord Bridge of Harwich
International, Litigation Practice, Evidence
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC "shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission". In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties. Held: The documents were supplied with the authority of the ITC. Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: "Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings."
Vienna Convention on Diplomatic Relations 24 27 - International Tin Council (Immunities and Privileges) Order 1972
1 Citers


 
Re K (Enduring Powers of Attorney), In re F [1988] Ch 310
1988
ChD
Hoffmann J
Agency, Litigation Practice, Health
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself incapable by reason of mental disorder of managing her property and affairs at the time that she executed the power. For a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act. In the context of litigation, the test to be applied is: "whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings." There is no logical reason why a person who understands that something needs to be done, but who does not have the requisite understanding to do it for himself, should not confer on another the power to do what needs to be done.
Hoffmann J said: "there is no logical reason why, though unable to exercise her powers, [the donor] could not confer them upon someone else by an appropriate juristic act. The validity of that act depends on whether she understood its nature and effect and not on whether she would hypothetically have been able to perform all the acts which it authorised." and
"I do not think that it would be sufficient if he realised only that it gave Cousin William power to look after his property. Mr Rawson [counsel instructed by the Official Solicitor] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor's affairs. Secondly (if such be the terms of the power) that the attorney will in general be able to do anything with the donor's property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept Mr Rawson's summary as a statement of the matters which should ordinarily be explained to the donor (whatever the precise language which may be used) and which the evidence should show he has understood."
1 Citers


 
MacIntosh v National Coal Board 1988 SLT 348
1988


Scotland, Litigation Practice
As to interest on damages, the rate to be applied was a matter for the Lord Ordinary's discretion


 
 Eckersley v Binnie; CA 1988 - [1988] 18 Construction Law Reports 1; (1988) 18 Con LR 1
 
Re Continental Assurance Co of London plc (No.2) [1988] 1 BCLC 583
1988

Evans-Lombe J
Litigation Practice, Insolvency
Directors of a company in creditors' voluntary liquidation sought to strike out an application by the liquidators seeking relief against them for wrongful trading and breach of fiduciary duty. They asserted that the liquidators' application was procedurally irregular since it had been made by way of ordinary application, rather than by an originating application. Held: The proceedings should have been started by originating application: "The practice of the court, as I understand it, is this. Where there has been a compulsory winding up, insolvency proceedings have started pursuant to which applications can be made by way of ordinary application. It is the practice to use ordinary applications where the relief being sought is relief particular to the liquidator or to the general body of creditors as represented by him. Thus, applications to set aside transactions for preference are normally brought where there is a compulsory liquidation by ordinary application. The position is different where, as here, the winding up is a creditors' voluntary winding up. That, notwithstanding the submissions of Mr Atherton, is not, in my judgment, a proceeding so as to constitute an insolvency proceeding within r7. It does not seem to me that it is possible to say that where, in a creditors' voluntary liquidation, an application in another matter has been made by way of originating application, all subsequent court proceedings can be commenced by ordinary application using the number which the first originating application has taken. It seems to me that in a creditors' winding up, where it is intended to bring proceedings in a particular matter against particular respondents or defendants, an originating application should be issued. It is not without significance that the fee payable on a originating application is considerably greater than that on an ordinary application. These proceedings should have been commenced by originating application."
1 Citers


 
Logicrose Ltd v Southend United Football Club Ltd Times, 05 March 1988; [1988] 1 WLR 1256
5 Feb 1988
CA
Millet LJ
Litigation Practice, Contempt of Court
An application was made to strike out the action in the middle of the substantive hearing on the ground that the responsible director of the plaintiffs had "deliberately suppressed [a crucial document] and, for a time, successfully concealed its existence from the Court." Held: The Court's processes had not been defeated and the proceedings should be allowed to proceed.
Millet LJ said: "That is a very serious allegation indeed if true it would deserve the serious consequences for which the defendants ask, but it must be clearly proved . . it does not have to be proved in accordance with the criminal standard of proof. Deliberate disobedience of a peremptory order for discovery is no doubt a contempt and, if proved in accordance with the criminal standard of proof, may, in theory at least, be visited with a fine or imprisonment. But to debar the offender from all further part in the proceedings and to give judgment against him accordingly is not an appropriate response by the Court to contempt. It may, however, be an appropriate response to a failure to comply with the rules relating to discovery, even in the absence of a specific order of the Court, and so in the absence of any contempt, not because that conduct is deserving of punishment but because the failure has rendered it impossible to conduct a fair trial and would make any judgement in favour of the offender unsafe. In my view a litigant is not to be deprived of his right to proper trial as a penalty for his contempt or his defiance of the Court, but only if his conduct has amounted to an abuse of the process of the Court which would render any further proceedings unsatisfactory and prevent the Court from doing justice. Before the Court takes that serious step it needs to satisfied that there is a real risk of this happening." and "The deliberate and successful suppression of a material document is a serious abuse of the process of the Court and may well merit the exclusion of the offender from all other participation in the trial. The reason is that it makes the fair trial of the action impossible to achieve and any judgment in favour of the offender unsafe. But if the threat of such exclusion produces the missing document, then the object of order 24 rule 16 is achieved. "
Millet LJ: "It is well established that a principal who discovers that his agent in a transaction has obtained or arranged to obtain a bribe or secret commission from the other party to the transaction is entitled, in addition to other remedies which may be open to him to rescind the transaction ab initio or, if it is too late to rescind, to bring it to an end for the future."
1 Cites

1 Citers


 
Powney v Coxage Times, 08 March 1988
8 Mar 1988
QBD
Schiemann J
Damages, Litigation Practice, Personal Injury
The court heard a dispute as to whether, when the Motor Insurers' Bureau had been joined as a defendant to an action, it was possible to obtain an interim payment under the unamended form of the rules. Held: It was not possible for such an interim payment to be made in those circumstances.
1 Citers



 
 Thetford Corporation And Others v Fiamma Spa And Others; ECJ 30-Jun-1988 - C-35/87; R-35/87; [1988] EUECJ R-35/87; [1987] 3 CMLR 266

 
 Pickstone v Freemans Plc; HL 30-Jun-1988 - [1989] AC 66; [1988] 2 All ER 803; [1988] 3 WLR 265; [1988] UKHL 2; [1988] 3 CMLR 221; [1988] ICR 697; [1988] IRLR 357
 
Babanaft International Co SA v Bassatne [1990] Ch 13; Independent, 30 June 1988; [1989] 1 All ER 433
30 Jun 1988
CA
Kerr, Neill and Nicholls LJJ
Jurisdiction, Banking, Litigation Practice
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute. Held: There was nothing to preclude English courts from granting Mareva type injunctions against defendants extending to assets outside the jurisdiction, but the court insisted that there can be no question of such orders operating directly upon the foreign assets by way of attachment, or upon third parties, such as banks, holding the assets. The effectiveness of such orders for these purposes can only derive from their recognition and enforcement by the local courts, as should be made clear in the terms of the orders to avoid any misunderstanding suggesting an unwarranted assumption of extraterritorial jurisdiction.
Nicholls LJ was concerned at the "extraterritorial vice" of unqualified orders. He pointed out "The enforcement of the judgment in other countries, by attachment or like process, in respect of assets which are situated there is not affected by the order. The order does not attach those assets. It does not create, or purport to create, a charge on those assets, nor does it give the plaintiff any proprietary interest in then. The English court is not attempting in any way to interfere with or control the enforcement process in respect of those assets."
Kerr LJ said: "In my view, the key to the proper exercise of any extra-territorial jurisdiction must lie in the question whether there is international reciprocity for the recognition and enforcement of the type of order which is under consideration, in this case a Mareva injunction or a variant of it purporting to operate on the defendants’ assets abroad." and
"Apart from any EEC or EFTA connection, there is in any event no jurisdictional (as opposed to discretionary) ground which would preclude an English court from granting a pre-judgment Mareva injunction over assets situated anywhere outside the jurisdiction, which are owned or controlled by a defendant who is subject to the jurisdiction of our courts, provided that the order makes it clear that it is not to have any direct effect on the assets or on any third parties outside the jurisdiction save to the extent that the order may be enforced by the local courts. Whether an order which is qualified in this way would be enforced by the courts of states where the defendant’s assets are situated would of course depend on the local law . ."
Kerr LJ considered the standard proviso in such an order protecting the interests of third parties: "We understand that this is nowadays a standard type of proviso to Mareva injunctions, and it is of course inserted for the benefit of third parties who may be affected by the freezing order. My reason for quoting it is that it illustrates that, although Mareva injunctions are orders made in personam against defendants, they also have an in rem effect on third parties. It shows that, save to the extent of the proviso, the order is binding on third parties who have notice of the injunction. Although the passage in the judgment of Lord Denning MR in Z Ltd v. A [1982] 1 All ER 556 at 562, [1982] QB 558 at 573 headed ‘Operation in rem’ may well go too far in a number of respects, there cannot be any doubt that Mareva injunctions have a direct effect on third parties who are notified of them and who hold assets comprised in the order."
Neill LJ said: "I am satisfied, however, that the Court has jurisdiction to grant a mareva injunction over foreign assets, and that in this developing branch of the law the decision in Ashtiani v. Kashi may require further consideration in a future case."
1 Cites

1 Citers


 
Derby and Co v Weldon Times, 02 August 1988
2 Aug 1988
CA

Litigation Practice
The court has a power to make a pre-judgment worldwide asset freezing order (a mareva injunction) on satisfaction of the following conditions: 1. That the defendant can be protected against too many and oppressive actions, 2. That he can be protected effectively against the misuse of any information so obtained, and 3. That the interests of third parties are protected.
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Derby and Co v Weldon (No2) Unreported, 19 October 1988
19 Oct 1988
ChD

Litigation Practice
The claimant sought a world-wide Mareva injunction against the assets of the defendant abroad. Held: The injunction was refused. A Mareva injunction should only operate within the jurisdiction.
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Rush and Tomkins Ltd v Greater London Council [1989] AC 1280; [1988] 3 WLR 939; [1988] 3 All ER 737; [1988] UKHL 7
3 Nov 1988
HL
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
Evidence, Litigation Practice, Construction
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the agreement so that it could pursue its own action. The council said that the document was covered by the without prejudice rule. Held: When looking at without prejudice negotiations to decide on admissibility, it would be wrong to isolate admissions before admitting the rest. That would not allow the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. The rule applies "to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence."
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Derby v Weldon (No. 3) Unreported, 7 November 1988
7 Nov 1988
ChD
Sir Nicholas Browne-Wilkinson VC
Litigation Practice
The plaintiff alleged conspiracy to defraud in a sum in excess of £25m. During the application for a freezing order the stance of the defendant had been one of "taciturnity" and non-disclosure. But on the last day of the hearing it was said that the defendant held certain assets. Another defendant, to whom over £50m had been paid, had no assets. That disclosure led to the application for a receivership order. Counsel for the defendant against whom the receivership order was sought presented no argument to the court on the question whether receivers should be appointed. Held: Sir Nicholas Browne-Wilkinson VC appointed receivers in a case where the court had earlier made an asset freezing order, saying: "The first question of law, which does not give me much trouble but was very properly referred to by [counsel], is whether a Receiver can be appointed in aid of a Mareva injunction. In my judgment it plainly can be done. If the proper preservation of the assets frozen under the Mareva order requires the introduction of a Receiver to hold certain assets, I can see no reason why such a Receiver should not be appointed as a matter of law."
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Rofa Sport Management AG v DHL International (UK) Ltd [1989] 1 WLR 902
1989
CA
Neill LJ
Litigation Practice
After an action had been stayed, it remained technically in being. It cannot proceed or resume without a court order, but it cannot properly be regarded as dead, in the same way as it might had it been dismissed or discontinued by order.
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 Vakauta v Kelly; 1989 - (1989) 167 CLR 569
 
Webster v James Chapman and Co [1989] 3 All ER 939
1989

Scott J
Litigation Practice
An expert's report prepared for the plaintiff was by mistake enclosed along with a letter to the defendant's solicitors. When informed of the mistake the plaintiff's solicitors sought its return with an undertaking to make no use of it. The plaintiff's solicitors subsequently received a revised report which was more favourable to his position, which was disclosed to the defendant's solicitors as being a report which would be relied on at trial. Held: Once a privileged document or a copy came to the party, prima facie the benefit of the privilege was lost and the party who had obtained the document then had in his hands evidence which could be used at trial. However, if the privileged document was also confidential, it retained protection as such against unauthorised disclosure or use. Where protection of confidential information was sought the court was required to exercise its discretion by balancing the legitimate interests of the plaintiff in seeking to keep the confidential information suppressed and the legitimate interests of the defendant in seeking to make use of it. In that balancing exercise the circumstances in which the information came into the hands of the defendant, the issues in the action, the relevance of the document and whether it would in one way or another have to be disclosed, together with the privileged nature of the document, were all highly relevant.
In this case the conduct of the defendant's case would be seriously embarrassed if the defendant was not able to make use of the report, since it had come into the possession of its solicitors without fault and since there would be no injustice to the plaintiff if the report were in evidence, together with the revised report, the plaintiff would be refused relief.
Scott J said: "Suppose a case where the privileged document has come into possession of the other side because of carelessness on the part of the party entitled to keep the document confidential and has been read by the other party, or by one of his legal advisers, without realizing that a mistake has been made. In such a case the future conduct of the litigation by the other party would often be inhibited or made difficult were he to be required to undertake to shut out from his mind the contents of the document. It seems to me that it would be thoroughly unfair that the carelessness of one party should be allowed to put the other party at a disadvantage." and
"The law regarding confidential information is . . now relatively well settled. The court must, in each case where protection of confidential information is sought, balance on the one hand the legitimate interests of the plaintiff in seeking to keep the confidential information suppressed and on the other hand the legitimate interests of the defendant in seeking to make use of the information. There is never any question of an absolute right to have confidential information protected . . Whether the unauthorised use of confidential information or of confidential documents will be restrained is essentially discretionary and must . . be dependent on the particular circumstances of the particular case. The privileged nature of the document in question is bound to be a highly material factor but would not … exclude from the scales other material factors."
Scott J refused to follow Nourse LJ's view in Goddard v. Nationwide Building Society [1987] QB 670, 685, that once it is established that confidentiality is established, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. Scott J said that he did not think that statement represented the ratio of the case.
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 Warnock v Scarborough Football Club; EAT 1989 - [1989] ICR 489
 
In re Konigsberg (A Bankrupt) [1989] 1 WLR 1257
1989

Peter Gibson J
Litigation Practice, Legal Professions, Insolvency
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt's entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt's solicitor can claim privilege under examination.
Peter Gibson J said: "Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading 'Joint retainer': 'When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other - e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.'
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. & G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff's solicitor, who agreed to write on the defendant's behalf to a third party. The defendant made a statement in the plaintiff's presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor's clerk as to what had been said."
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 In re Jokai Tea Holdings Ltd; CA 1989 - [1992] 1 WLR 1196
 
Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197
1989
HL
Lord Griffiths
Litigation Practice
An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action brought was 13 months. Held: Referring to dicta of Lord Justice Kerr, Lord Griffiths said: "I see the force of this observation, particularly in a case like the present, when there is no good reason why the action should not have been started much earlier than it was. But limitation periods are set by Parliament and not by the courts. It would, I think, introduce intolerable uncertainty into the litigation process if litigants were at risk of being penalised even if they commenced their actions within the limitation period and thereafter pursued them expeditiously. The effect would be to push people into precipitate litigation for fear that the court might eventually rule that they had not started their action soon enough.
The courts must respect the limitation periods set by Parliament; if they are too long then it is for Parliament to reduce them. I therefore commence my assessment of the present regime by concluding that the plaintiff cannot be penalised for any delay that occurs between the accrual of the cause of action and the issue of the writ provided it is issued within the limitation period." No case had been made out to abandon the need to show that the post-writ delay will either make a fair trial impossible or prejudice the defendant.
The House considered its ability to depart from its previous decisions, and the Practice Statement: "To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court control case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by Rules of Court as modified by a judge ; See the Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394)."
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 Ministry of Agriculture, Fisheries and Food v Heyman and others; 1989 - [1989] 59 P & CR 48; (1990) 59 P & CR 48
 
In re Primlaks (UK) Ltd [1989] BCLC 734
1989

Vinelott J
Litigation Practice, Insolvency
A prerequisite to making an administration order under section 8(1) is that the court considers making such an order 'would be likely to achieve' one of the statutory purposes. Held: This required the court to be satisfied there is a 'prospect sufficiently likely in the light of all the other circumstances of the case to justify making the order'.
Insolvency Act 1986 8(1)
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Director General of Fair Trading v Tobyward [1989] 2 All ER 266; [1989] 1 WLR 517
1989
ChD
Hoffmann J
Media, Consumer, Litigation Practice
The company advertised a product as assisting in permanent weight loss. The Advertising Standards Authority had found the advertisements to be misleading, but the company persisted, and the Authority referred the case to the applicant, who sought an injunction. Held: The court had jurisdiction to grant the injunction requested. Hoffmann J required no cross-undertaking in damages from the Director. Whatever he might think about the policy, it is well established that "the usual practice is that no cross undertaking is required" when the Crown is seeking an interim injunction to enforce the law.
Control of Misleading Advertisements Regulations 1988 (1988 No 915)
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 Warren v Mendy; CA 1989 - [1989] 1 WLR 853
 
Lock v Beswick [1989] 1 WLR 1268
1989

Hoffmann J
Employment, Litigation Practice
The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee. Held: Hoffmann J said: "Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff's rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them."
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 Barclays Bank Swaziland Ltd v Hahn; HL 1989 - [1989] 1 WLR 506

 
 O'Regan v Iambic Productions; 1989 - (1989) 139 NLG
 
Singh v Observer Limited [1989] 2 All ER 751
1989

McPherson J
Litigation Practice
Once the occasion for the exercise of a power to award costs against a third party has arisen, the court, in order to enable it to be fully and appropriately exercised, will investigate so as to establish the identity of a third party maintainer of the unsuccessful party, and the liability of that maintainer in respect of the successful party's costs. The court has ancillary jurisdiction to make an order against a plaintiff requiring him to disclose whether there is a third party funder.
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 In re DPR Futures Ltd; 1989 - [1989] 1 WLR 778

 
 Behbehani v Salem; CA 1989 - [1989] 1WLR 723

 
 Regina v Kensington and Chelsea Royal London Borough Council Ex parte Hammell; CA 1989 - [1989] QB 518; [1989] 1 All ER 1202; [1989] 2 WLR 90; [1989] Fam Law 430
 
Mansour v Mansour [1989] 1 FLR 418
1989
CA
Sir John Donaldson MR
Litigation Practice, Family



 
 Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another; CA 1989 - [1989] 2 Lloyds Rep 298
 
Derby and Co v Weldon (No2) [1989] 1 All ER 1002
2 Jan 1989
CA
Lord Donaldson of Lymington MR
Litigation Practice
The plaintiff appealed against the refusal of a world-wide Mareva injunction. Held: The appeal succeeded. Lord Donaldson of Lymington MR said: "We live in a time of rapidly growing commercial and financial sophistication and it behoves the courts to adapt their practices to meet the current wiles of those defendants who are prepared to devote as much energy to making themselves immune to the courts' orders as to resisting the making of such orders on the merits of their case."
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Derby and Co Ltd v Weldon [1990] Ch 48; [1989] 2 WLR 276; (1989) 133 SJ 83; [1989] 1 All ER 469; [1989] 1 Lloyd's Rep 122
2 Jan 1989
CA
Nicholls LJ, Parker LJ
Litigation Practice
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction. Held: A freezing order (Mareva injunction) can be made in respect of assets which were outside the jurisdiction. To meet the court's concerns about the risk of oppression to the defendant arising from the commencement of proceedings abroad, the plaintiffs offered undertakings including not to seek to enforce the WFO abroad without the permission of the court.
Nicholls LJ considered the circumstances in which a court might give its permission to enforce an order abroad: "In the present case the plaintiffs propose that this point should be dealt with by the plaintiffs giving to the English court an undertaking in terms which will preclude them from making any application to a foreign court to enforce the order without first obtaining leave from the English court. This seems to me to be a convenient course. If this undertaking is accepted, and an order is made, it would then be for the judge of the English court to whom any application for such leave might be made to consider, amongst other matters, whether the enforcement of the order in the country or countries for which leave is sought will, under the law of that country, result in the order having a substantially similar effect there to a Mareva restraint order in this country, as distinct from the order having there a more far-reaching effect (such as the assets in the country being attached as a form of security for the plaintiffs' claims, which is not the object of a Mareva restraint order). On any application for such leave, which normally would be inter partes, the judge can be expected to have before him what we do not have, namely, evidence of the law and practice in the country or countries in which the order is sought to be enforced. The undertaking, I add, is being offered by all the plaintiffs, which include amongst their number English companies whose substance has not been questioned. So the undertaking is a worthwhile one."
Parker LJ said: "There are in essence only three issues: (i) has the plaintiff a good arguable case; (ii) has the plaintiff satisfied the Court that there are assets within and, where an extraterritorial order is sought, without the jurisdiction; and (iii) is there a real risk of dissipation or secretion of assets so as to render any judgment which the plaintiff may obtain nugatory. Such matters should be decided on comparatively brief evidence."
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 Capita Financial Group Ltd v Rothwells Ltd; 20-Apr-1989 - (1989) 15 ACLR 348

 
 In re F (Mental Patient: Sterilisation); HL 4-May-1989 - [1990] 2 AC 1; [1989] 2 WLR 1025; [1989] 2 All ER 545, CA and HL(E)
 
Rickards v Rickards [1990] Fam 194; [1989] EWCA Civ 8; [1989] 3 WLR 748; [1990] 1 FLR 125; [1989] 3 All ER 193
20 Jun 1989
CA
Lord Donaldson MR, Balcombe LJ, Nicholls LJ
Litigation Practice
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could depart from an earlier decision in those "rare and exceptional cases" where the court was "satisfied that the decision involved a manifest slip or error".
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