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Litigation Practice - From: 1991 To: 1991

This page lists 44 cases, and was prepared on 02 April 2018.


 
 Attorney-General v Times Newspapers Ltd; HL 1991 - [1992] 1 AC 191; [1991] CLY 2809; [1991] 2 WLR 994
 
Femis Bank v Lazard [1991] Ch. 391
1991

Nicholas Browne-Wilkinson V-C
Defamation, Litigation Practice, Torts - Other
Nicholas Browne-Wilkinson V-C said: "However, in this case the plaintiffs rely on the decision . . in Gulf Oil (Great Britain) Ltd v. Page . . which shows that, where the cause of action is founded on conspiracy to injure, the court can grant an injunction restraining publication.
It is the plaintiffs' case here that they have an arguable case that the sole or paramount intention of Mr. Lazar and Cityguide operating in concert is to injure the plaintiffs . .
However, on the other side I must take account of the fact of the intemperate language such as I have quoted, the element of witchhunt which comes into the matter, the extreme broadcasting of these allegations. The manifest dislike which Mr. Lazar entertains for Mr. Singh may well have come – although of course I cannot tell at this stage – from a position which seems to have emerged towards the end of 1989 in which Mr.Lazar or those associated with him appear to have wished to obtain either a stake in or control of Femis. There are documents showing Mr.Lazar holding himself out as being in that position. Mr Singh in fact obtained control. In addition the unhappy episode in which Mr. Singh covertly joined Femis at a time when he was still ostensibly acting for Cityguide cannot have improved relations.
There are therefore substantial grounds on which it can be argued that there was a major malicious motive in Mr. Lazar's conduct. Though I have substantial doubts whether at trial the plaintiffs will establish that the sole or paramount purpose of what Mr Lazar did was simply to injure without lawful justification, I marginally reach the view that there is an arguable case on the point".
1 Cites

1 Citers


 
The Sardinia Sulcis [1991] 1 Lloyd's R 201
1991
CA
Lloyd LJ
Limitation, Litigation Practice
The power to change a party after the expiry of a limitation period can be exercised where a party has been wrongly identified, but "it was possible to identify the intending claimant or intended defendant by reference to a description which was more or less specific to the particular case".
Civil Procedure Rules 19.5 - Limitation Act 1980 35
1 Citers


 
Bain v Hugh LS McConnell Ltd 1991 SLT 691
1991


Scotland, Litigation Practice
The court discussed procedures to correct fundamental miscarriages of justice.
1 Citers



 
 H v Ministry of Defence; CA 1991 - [1991] 2 All ER 834; [1991] 2 WLR 1192
 
Halford v Brookes [1991] 1 WLR 428; [1991] 3 All ER 559
1991
CA
Lord Donaldson of Lymington MR
Limitation, Litigation Practice
The plaintiff, the mother and administratrix of the estate of a 16 year old girl, alleged that her daughter had been murdered by one or both of the Defendants. The claim was for damages for battery. Rougier J at first instance had decided that: "where the burden of proof is concerned it is my view that I should adopt the equivalent of the criminal standard . . I have proceeded, as indeed Mr Scrivener invited me to, on the basis that no-one, whether in a criminal or a civil court, should be declared guilty of murder, certainly not such a terrible murder as this, unless the Tribunal were sure that the evidence did not admit of any other sensible conclusion", and went on to hold that he was sure that both Defendants were party to the murder of the deceased. Strictly speaking therefore, his decision as to the standard of proof was not essential to the result, since the Claimant would have succeeded whatever the standard of proof; and indeed was reached on the basis of a concession by leading counsel for the plaintiff. Held: The court discussed the meaning of 'knowledge' for the purposes of the 1980 Act. Held: Lord Donaldson of Lymington MR said: "In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.’ and 'suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice."
Motives above and beyond obtaining damages - which a plaintiff may have in pursuing his claims in battery neither enhance nor damage his case for allowing those claims to proceed.
Limitation Act 1980
1 Citers


 
Mercer v Chief Constable of Lancashire [1991] 1 WLR 367
1991
CA
Lord Donaldson MR
Litigation Practice, Police
When justifying a detention, the Chief Constable must prove it "was lawful minute by minute and hour by hour".
1 Citers


 
Morgan Crucible Company Plc v Hill Samuel and Co Ltd [1991] Ch 285
1991
ChD
Hoffmann J
Litigation Practice, Negligence
The court laid down the procedure on a strike out application: "On an application to strike out a pleading under RSC Ord.18, r.19(1)(a) no evidence is admissible and since it is only the pleading itself which is being examined, the court is required to assume that each and every one of the facts pleaded (unless manifestly incapable of proof) is true and will be capable of proof at the trial. In some instances, the court may regard the assumption as somewhat unrealistic, but it nevertheless has to be made." The court set out the main principles under which a party can be liable for economic loss in negligence.
Rules of the Supreme Court Ord.18, r.19(1)(a)
1 Citers



 
 Prudential Assurance Co Ltd v Fountain Page Ltd; 1991 - [1991] 1 WLR 756

 
 House of Spring Gardens v Waite; CA 1991 - [1991] 1 QB 241
 
Bayer v Harris Pharmaceuticals Ltd [1991 FSR 170
1991


Litigation Practice
A disclosing party does not have to provide a translation of documents in a foreign language.
1 Citers



 
 Geogas SA v Trammo Gas Ltd (The Baleares); HL 1991 - [1991] 1 WLR 776; [1991] 1 Lloyd's Rep 349
 
Practice Direction (Duties and Functions of the Official Solicitor) [1991] FLR 471
1991


Family, Litigation Practice

1 Citers


 
Black and Decker Inc v Flymo [1991] 1 WLR 753
1991

Hoffmann J
Litigation Practice, Legal Professions
Legal professional privilege is a right to resist the compulsory disclosure of information. "It is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed. Once the document has passed into the hands of the other party the question is no longer one of privilege but of admissibility.”
1 Citers


 
Bonzel (T) v Intervention Ltd (No3) [1991] RPC 553
1991


Intellectual Property, Litigation Practice

1 Citers



 
 Ventouris v Mountain; CA 1991 - [1991] 1 WLR 607; [1991] 3 All ER 472
 
Patten v Burke Publishing Ltd [1991] 1 WLR 527
1991
ChD
Millet J
Contract, Litigation Practice
The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract. Held: The guiding principle which determines how the discretion is to be exercised whether to grant declarations is that the Court must do what is necessary to achieve justice. If a contract had been repudiated, and was no longer in effect, a declaration would be the way to achieve fullest justice by making it clear to the plaintiff that he was free of the contract.
1 Citers



 
 Arnold v National Westminster Bank Plc; HL 1991 - [1991] 2 AC 93; [1991] 3 All ER 41; [1991] 2 WLR 1177
 
In re First Express Ltd [1991] BCC 782; [1992] BCLC 824
1991
ChD
Hoffman J
Litigation Practice
A liquidator applied to discharge an order that had been made against him ex parte under section 234 requiring him to hand over books and records of the company in his possession to administrative receivers. Held: Hoffman J said: "It was wrong for the application to be made ex-parte. It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First that giving him such a opportunity appears likely to cause injustice to the applicant by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensatable under the cross undertaking or that the risk of un-compensatable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made. There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex-parte order. This should be discouraged. One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied. The principle audi alterem partem does not yield to a mere utilitarian calculation. It can be displaced only by invoking the overriding principle of justice which enables the court to act at once when it appears likely that otherwise injustice will be caused."
Insolvency Act 1986 234
1 Citers


 
The Al Tawwab [1991] 1 Lloyd's Rep 201
1991
CA
Lloyd LJ, Stocker LJ
Litigation Practice
The ship 'Sardinia Sulcis' collided with the 'Al Tawwab'. The charterers of the latter paid damages and so were subrogated to the owners' rights against the owners of the Al Tawwab. They brought proceedings in rem in the name of 'the Owners of the 'Sardinia Sulcis'. Before they did so, the owners assigned their rights to another company, the demise charterers of the vessel. The court was asked to substitute the demise charterers for the owners pursuant to O.20, r 5. Held: They could. Lloyd LJ summarised the criteria under that rule: "The first point to notice is that there is power to amend under the rule even though the limitation period has expired: see O.20, r. 5(2). The second point is that there is power to amend, even though it is alleged that the effect of the amendment is to add a new party after the expiration of the limitation period. But the Court must be satisfied (1) that there was a genuine mistake, (2) that the mistake was not misleading, (3) that the mistake was not such as to cause reasonable doubt as to the identity of the person intending to sue, and (4) that it would be just to allow the amendment." and "The 'identity of the person intending to sue' is a concept which is not all that easy to grasp and can be difficult to apply to the circumstance of a particular case." He considered the test to be applied to ascertain 'the person intended to be sued': "In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intented to be sued was the plaintiffs employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be other wise."
Stocker LJ said: "can the intended plaintiff or defendant be identified by reference to a description which is specific to the particular case - e.g. landlord, employer, owners or ship owners. If the identity of the person intending to sue or be sued appears from such specific description any amendment is one of name; where it does not it will in many if not in all cases involve the description of another party rather than simply the name."
1 Citers


 
Regina v Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 QB 558
1991
CA
Glidewell LJ, Taylor LJ, Sir George Waller
Litigation Practice, Judicial Review
The court was asked to order a stay on implementing a decision taken by the respondent. Held: A "stay of proceedings" in the context of applications for judicial review embraced not only judicial or quasi-judicial proceedings but also extended to decisions of the Secretary of State and the process by which such decisions had been reached, including the decision itself. A distinction was to be made between civil litigation, where an injunction might be ordered at the suit of one party against the other, and judicial review, where the decision-maker is not in any true sense an opposing party and where the order that the decision should not take effect until the challenge had been determined is correctly described as a stay.
Glidewell LJ said: "A stay is an order that the judicial proceeding or administrative decision which is the subject of challenge should not continue or take effect until the judicial review challenge is determined. It is available as a remedy against all public bodies against whom leave has been granted, including the Crown in the form of a government department or minister." The language of the rule is wide enough to enable the court to impose a stay on "the process by which the decision challenged has been reached, including the decision itself".
However, the availability of an expedited hearing of the application for judicial review made it unnecessary to order a stay: "We decided that the court has such jurisdiction. However, when it became clear to us that an early hearing of the substantive application could be arranged, we considered that a stay was unnecessary, and declined to grant a stay."
Glidewell LJ said also: "Today, many applications for judicial review are for orders of certiorari to quash decisions of decision-making bodies other than courts, including government ministers, local authorities and other bodies whose decisions are susceptible to judicial review. Thus the phrase "a stay of the proceedings" in relation to such bodies must mean a "stay of the process by which the decision challenged has been reached, including the decision itself."
Order 53 R3(10)(a)
1 Citers


 
Irish Shipping Ltd v Commercial Union Assurance Co Ltd [1991] 2 QB 206
1991
CA
Purchas LJ
Litigation Practice
77 underwriters entered into separate insurances but on the same terms including one which obliged that underwriter to abide by any judgment obtained by the insured against the lead underwriter. Held. The principle in Duke of Bedford applied even though not all those represented might know of the proceedings or might have an individual defence. Purchas LJ set out the procedure: "Although the judgment is to be binding upon those comprised in the class represented, protection is given to members of the class sued who may have been improperly joined in the class or who may have individual grounds of defence, since the judgment cannot be enforced until the plaintiff has complied with the requirements of Ord. 15, r. 12(3), (4) and (5). (3) However, the effect of rule 12(5) is merely to protect the member of the class sued from having the judgment enforced against him. The judgment is still valid for other purposes such as a counterclaim or other process in which that person may wish to rely upon allegations which will be denied to him by the findings of the judgment, the issues being res judicata for such purposes. It will be seen that there is nothing in the wording of the rule itself which would restrict the wide ambit in which the rule should operate, in line with the old Chancery practice; but there are now built-in safeguards to protect a member of the class who may have particular defences or may be able to distance himself from the class in other respects. This accords with the concept, as I see it, of the old rule, namely a broad rule of procedural convenience to be exercised with a wide but carefully used discretion."
1 Citers


 
Regina v Highbury Corner Magistrates Court ex parte E [1991] 1 WLR 388
1991


Litigation Practice
An application for permission to apply for judicial review of a decision taken in the course of civil proceedings is itself a civil proceeding.
1 Citers



 
 Regina v Secretary of State for the Home Department ex parte Cheblak; CA 1991 - [1991] 1 WLR 890
 
Microdata v Rivendale [1991] FSR 681
1991


Intellectual Property, Litigation Practice
The need to protect freedom of speech overrode the need to protect a person's trade reputation.
1 Citers


 
Roburn Construction Ltd v William Irwin (South) and Co Ltd [1991] BCC 726
1991


Costs, Litigation Practice
When making an order for security for costs, the court will normally order a substantial sum, but need not.
1 Citers


 
Langley v North West Water Authority [1991] 3 All ER 610; [1991] 1 WLR 697
1991


Litigation Practice
A tribunal has an inherent power (subject to constraints) to regulate the procedure to be followed before it.
1 Citers


 
Derby and Co Ltd And Others v Weldon And Others (No 10) [1991] 1 WLR 660; [1991] 2 All ER 908
1991
CA
Vinelott J
Litigation Practice
A document had been disclosed by mistake. Held: The inspecting parties must have realised that the documents had been disclosed by mistake. Fairness on the opposite party is the basis for the courts to hold for a waiver of legal privilege.
There is a crucial difference between a mere indication that one has sought or received legal advice, and the disclosure of its contents.
1 Cites

1 Citers


 
Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449
1991
CA
Lord Donaldson of Lymington MR
Litigation Practice
The four factors to be taken into account when considering an application to extend the time for leave to appeal are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted.
1 Citers


 
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
1991

Murphy J, Kaye J, Brooking J
Commonwealth, Litigation Practice, Equity
(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking. Held: If it had power to award compensation it would do so. However, after an exhaustive review of authorities from three continents, the court unanimously concluded that the court had no such power; and that a person against whom an injunction is granted but later discharged is "without remedy" in the absence of a cross-undertaking.
Kaye J: "It is therefore clear from the authorities to which I have referred that the practice followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking as to damages has been based on the view that otherwise the defendant would be without remedy in the event of the order having been improperly made."
Murphy J: "Next, restitutio in integrum has been espoused as a principle by the appellants. The cases relied upon to support the assertion that it is just and equitable to award monetary compensation for any loss caused the appellants do not in my view go this far in terms. It must be conceded that it is an established principle that it is just and equitable to allow interest upon money ordered to be repaid to a defendant who has been wrongly ordered to pay a capital sum to a plaintiff" and
"The fallacy in the appellants' case appears to me to rest in the fact that they cannot point to a right entitling them in equity to monetary compensation. What the respondents have done is come to the court seeking payment of an alleged debt, and in the course of such action have sought interlocutory equitable relief in support of that claim. The court has ruled that the interlocutory equitable relief sought was wrongly granted, and have set it aside, but this did not constitute the breach or infringement of any recognisable right in equity which might have entitled the appellants/defendants to monetary compensation or might have obliged the respondents to put the appellants "in as good a position pecuniarily as that in which he was" (they were) "before the injury": Nocton v Lord Ashburton [1914] A.C. 932, at p.952." and
"Nowhere have the researches of counsel found a relevant precedent in which, in the absence of an undertaking, an award of monetary compensation has been made to compensate a defendant for loss occasioned [to] his property by the making of an erroneous order that has been subsequently set aside"
Brooking J: "With all due respect to W.S. Gilbert's Lord Chancellor, in practice the law is not always the true embodiment of everything that's excellent. Mistakes are made from time to time." and
"The first question is that of the limits of the principle expressed by Lord Cairns in Rodger's Case. For the passage cannot be read as asserting that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. The law being what it is, and judges being what they are, many wrong judgments and orders are given and made. These can be corrected on appeal. But there are and must be limits to how far the courts will go in putting matters right on appeal." and
"But while the cases show that the courts will often, by way of setting things right on appeal, go beyond the mere substitution of the right judgment or order for the wrong one, it is not the law that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. Any such unlimited principle is inconsistent with the law's recognition of the torts of malicious abuse of process and malicious institution of proceedings, with their uncertain, but certainly limited, scope: Metall und Rohstoff v Donaldson Lufkin & Jenrette [1989] 3 W.L.R. 563, at pp. 611-15. And any such unlimited principle would mean that an appellate court would be entitled or obliged to award compensation or damages whenever it set aside an erroneous judgment or order which had caused damage to the appellant which was not regarded for this purpose as too remote. Yet many final judgments or orders that may be set aside on appeal are apt to cause great damage to the unsuccessful party in circumstances where it is unthinkable that the appellate court should have power to award damages or compensation. An order winding up a corporation is about as drastic an order as one could imagine. Such an order will rarely be stayed pending an appeal, and great and irremediable damage may be done to the corporation by the order in the meantime. But I have never heard it suggested that if a winding up order is set aside on appeal the appellate court may award damages or compensation against the party who obtained it. At the trial of an action a final injunction to prevent the commission of a nuisance may put the defendant out of business. May the court of appeal not only set aside the injunction but also award damages for the destruction of the defendant's business? A judgment for possession of business premises may mean financial disaster for the defendant who claims that his lease has not been duly determined. If there is no stay and the defendant succeeds on appeal, is he to be awarded damages on the principle that the court must take care that "no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
1 Cites

1 Citers


 
Tate Access Floors Inc v Boswell [1991] Ch 512
1991

Sir Nicolas Browne-Wilkinson V-C
Litigation Practice
Senior employees were suspected of misappropriating the company's funds. Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the privilege against self-incrimination in any case brought by its principal to enforce the fiduciary duties. Sir Nicolas Browne-Wilkinson V-C said: "Where an ex parte order is sought which might in practice preclude the defendant from raising the claim to privilege before the order is executed, the judge should not have made the ex parte order at all."
1 Citers



 
 Arab Monetary Fund v Hashim; HL 1991 - [1991] 1 AC 114
 
Bonzel v Intervention Ltd [1991] RPC 231
1991


Intellectual Property, Litigation Practice
"the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear evidence in relation to documents which are privileged which could be used in other jurisdictions, would tend to make patentees reluctant to disclose the full position. That of course would not be in the interest of the public."
1 Cites

1 Citers


 
Doherty (suing as personal representative of Daniel Doherty deceased) v Ministry of Defence Unreported, 5 February 1991
5 Feb 1991
CANI
Sir Brian Hutton CJ, Higgins J
Litigation Practice, Northern Ireland
In a civil action against army personnel, the defendant ministry applied that military witnesses should be screened while giving evidence so as to protect their identities. They were also to be identified by letters, not names, but the claimant raised no objection to that. Held: The evidence to be given by these military witnesses would be "directly detrimental to the plaintiff's case", and the claimant must not lose the advantage of being able to cross examine them face to face.
Sir Brian Hutton CJ said: "I think it appropriate to observe that, in my opinion, counsel for the Ministry in his submissions accorded insufficient recognition to the importance of counsel being able to cross-examine, face to face, an important witness giving evidence on a vital issue in dispute between the parties. Where issues are in dispute between the parties unimpeded cross-examination plays a vital part in the trial and gives vital assistance to the due administration of justice. I consider that counsel would be impeded in the cross-examination of a witness, whose evidence he wished to challenge, if he could not see his face fully, and I find it difficult to envisage circumstances in which the interests of justice would require that the face of a vital witness giving evidence on an important matter in dispute should be screened from counsel cross-examining him."
Higgins J said: "Mr Kerr in his submission on behalf of the Ministry of Defence questioned the importance of a lawyer appearing in a trial being able to see the witnesses for the opposing side give evidence, even when their evidence is crucial and disputed. I think that in a contested case it is essential that the lawyer for one party should be able to see the demeanour of each witness, called by the other side to give evidence of any importance; to prevent him from viewing such a witness would be a hindrance to his cross-examination.
The exposure of witnesses, even when giving uncontroversial evidence, to the view of the lawyers in the case has been the invariable practice in the common law system of administering justice. It has been one of the features which has contributed to the maintenance of public confidence in the administration of justice. To depart from it in any circumstance, unless there has been consent, would, I consider, diminish public confidence.
The Ministry is seeking to have four witnesses at the trial of this case screened from the sight of all but the trial judge. Those witnesses would be giving evidence in support of the defence of reasonable force, which is likely to be challenged strongly. It is my opinion that to permit, for no matter how compelling a reason, any of those witnesses to be cut off, while in the witness-box, from the view of the plaintiff's lawyers, would be an unacceptable departure from the fundamental principles which govern the conduct of trials throughout the United Kingdom."
1 Citers


 
Landaur Limited v Cummings and Co Unreported, 4 May 1991
4 May 1991


Litigation Practice
An inadvertent destruction of documents may have the same consequences visited on the party as a deliberate destruction.
1 Citers


 
Landauer Ltd v Comins and Co (a firm) Times, 14 May 1991
14 May 1991
CA
Lord Justice Lloyd
Litigation Practice
The first instance Judge had struck out a claim under the provisions of order 24 rule 16(1) in circumstances where a number of relevant documents did not appear on the plaintiffs list of documents and were found to have been destroyed, the destruction having taken place after the commencement of proceedings, and in respect of some of the documents, after the plaintiffs list of documents had been filed. Held: "this is the first occasion on which a claim has been stuck out for breach of a discovery obligation" The judge at first instance was "fully entitled to find that there was a serious risk that essential documents may have been destroyed in this case, as a result of which a fair trial of the action is no longer possible... ." and "It may be that the submission means no more than this, that where documents have been deliberately suppressed, it may be relatively easy to draw the inference that they are highly material and that in the absence of those documents justice cannot be done. If that is all that was meant, then I would agree."
1 Cites

1 Citers


 
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd Gazette, 12 June 1991; [1991] 3 WLR 985
12 Jun 1991
CA

Local Government, Litigation Practice

1 Citers


 
Standrin v Yenton Minster Holmes Ltd Times, 22 July 1991
28 Jun 1991
CA
Parker LJ
Litigation Practice
The parties had exchanged letters asserting an insurance claim. They had been marked without prejudice, and one party now objected to their admission in evidence. Held: The letters did not have the protection sought. At the time they were written, there was no dispute between the parties, and therefore the letters could not be an attempt to settle a dispute.
1 Citers


 
Re G (Chambers Proceedings: McKenzie friend) [1999] 2 FLR 59; CAT 679/1991
10 Jul 1991
CA
Parker LJ, Balcombe LJ
Litigation Practice, Legal Professions
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature and that it was unnecessary for the LIP to have a McKenzie Friend. Held: The court upheld a decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. Who, other than a party to the proceedings, his solicitor on the record or counsel, shall be permitted to attend proceedings in chambers is always a matter for the discretion of the judge. (reported 1999)
Parker LJ said: "In the present case the proceedings are in Chambers and in my judgment it must be a matter for the judge to have control over whom he permits to remain in a Chambers’ proceeding. There are, no doubt, many cases in which a judge will find it proper to exercise his discretion in favour of allowing a McKenzie Friend to be in Chambers and he should and will naturally view any application in that behalf with sympathy, as I have no doubt the learned judge did in this case, but, save in exceptional cases, it would be quite wrong for this court to interfere with the decision of a learned judge as to the persons whom he will allow to be present in a Chambers’ matter."
Balcombe LJ said: "I agree. The position of litigants in person, who are ineligible for legal aid but at the same time unable to afford the normal services of a solicitor, is one where the use of a McKenzie Friend in appropriate circumstances can be very helpful. For that reason I agree with what my Lord has said that one hopes, and indeed expects, that judges of the Family Division, when dealing with cases in Chambers, will consider with understanding any application for a litigant in person to have the assistance of a McKenzie Friend where appropriate. But having said that, I agree entirely with what my Lord has said that this must be a matter for the discretion of the judge to conduct his or her own proceedings in Chambers."
1 Citers


 
Regina v Leicester City Justices, ex parte Barrow [1991] 2 QB 260
1 Aug 1991
CA
Lord Donaldson of Lymington MR
Magistrates, Litigation Practice
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had refused review. Held: The appeal succeeded. "A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene . . if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the 'assistance' is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions." The court expressed its hope that as regards the term 'McKenzie Friend': "the fervent hope . . that we shall hear no more of "McKenzie friends" as if they were a form of unqualified legal assistant known to the law." Such terminology obscures the real issue which is fairness or unfairness. Let the term "McKenzie friend" join the "Piltdown man" in decent obscurity."
On the facts "I cannot be sure that the applicants were not prejudiced and accordingly I have no doubt that the justices' order should be quashed."
Lord Donaldson of Lymington MR said: "It is important to appreciate that in this case we are not concerned with rights of audience or rights to conduct litigation. Rights to conduct litigation are not relevant to proceedings on a summons claiming a community charge liability order, whilst the applicants’ right of audience as parties to the proceedings has never been called into question and neither they nor Mr John sought any right of audience for him. The applicants’ case came on for hearing at a time when, for good reason, the court was closed to the general public, other than representatives of the press, and the applicants, represented by Ms Jones, rightly sought (and needed) the leave of the justices to enable Mr John to enter the court. The reason put forward by Ms Jones was that the applicants wished Mr John to assist them in presenting their cases to the court by taking notes, quietly making suggestions to the applicants and giving the applicants advice.
The justices’ refusal to allow Mr John to enter the court may well have aggrieved Mr John, but he is not a party to these proceedings. In so far as he has a legitimate grievance, it could only be on the basis that he was a member of the public who wanted to be a spectator in court, for, not having a right of audience on behalf of the applicants, he personally had no other right. The applicants are in a different position. They have a right to be heard in their own defence. Fairness, which is fundamental to all court proceedings, dictates that they shall be given all reasonable facilities for exercising this right and, in case of doubt, they should be given the benefit of that doubt for courts must not only act fairly, but be seen to act fairly. The real issue in this appeal is whether the Leicester City justices acted fairly and were seen to act fairly in the circumstances of this case. That they sought to do so in a difficult situation is not in doubt, but they may not have succeeded. References to “McKenzie Friends” and still more to a “right to a McKenzie Friend” mislead, because they suggest that someone who seeks to assist a litigant in person has a special status akin to, if less than, that of one who has a right to audience or a right to conduct litigation. The “McKenzie Friend” does not exist at all as such and has neither status nor rights. The only right is that of the litigant and his right is to reasonable assistance which can take many forms."
1 Cites

1 Citers


 
Leiba v Brizan (Unreported 1991); Mag App no 264 of 1991
25 Oct 1991

Ibrahim JA
Litigation Practice, Commonwealth
(Trinidad and Tobago) Pending an appeal the Court of Appeal has jurisdiction to stay execution of a possession order made by the magistrate.
1 Citers



 
 Regina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd; HL 14-Nov-1991 - Gazette, 22 January 1992; [1992] 2 AC 48; [1989] UKHL 4; [1991] 3 WLR 941
 
Practice Direction: Time Summonses 2 Dec 1991 Gazette, 18 March 1992
2 Dec 1991
ChD

Litigation Practice
Continues permanently procedures adopted by practice direction of 6 June 1989.

 
Practice Direction: 21 Dec 1991 Gazette, 19 February 1992
21 Dec 1991
ChD

Litigation Practice
Sets up Senior Masters lists, floating lists (room 186) and for urgent applications.

 
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