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		Litigation Practice - From: 2002 To: 2002 This page lists 180 cases, and was prepared on 02 April 2018. Â Re H (McKenzie Friend: Pre-Trial Determination) [2002] 1 FLR 39; [2001] EWCA Civ 1444 2002 CA Thorpe LJ Family, Litigation Practice The judge had refused a father's application to be assisted by a McKenzie friend (a Dr Pelling) on the ground that, having listened to and observed the proposed McKenzie friend, he felt that, with the father on his own, the hearing would be fairer, as well as less adversarial and legalistic. Held: The court allowed the father's appeal. Thorpe LJ said: the presumption in favour of permitting a McKenzie friend was a strong one. The argument in the court below had necessarily been an adversarial and legalistic one and, since it was unusual for a respondent to oppose an application for McKenzie assistance, as the mother had done vehemently, it was possible that she had contributed to the adversariality. 1 Citers Â Â Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd; 2002 - [2003] 1 WLR 307; [2002] EWCA 1142 Â Â Rowland v Bock; 2002 - [2002] 4 All ER 370 Â Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The "Margaretha Maria") [2002] 2 Lloyd's Rep 293; [2002] EWCA Civ 509; [2002] 2 All ER (Comm) 97 2002 CA Mance LJ, Thorpe LJ, Neuberger J Litigation Practice Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. The appellate court should not interfere with a judge's findings of primary fact where they are based on oral evidence unless it is satisfied that the judge was plainly wrong. Mance LJ said: "Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence." Fishing Vessel (Safety Provisions) Rules 1975 (SI 1975 No. 330) 16 1 Cites 1 Citers [ Bailii ] Â Anglo Eastern Trust Ltd v Kermanshahgi [2002] EWHC 1702 (Ch) 2002 ChD Neuberger J Litigation Practice An asset freezing order restrains the defendent from dealing with his assets but does not prevent him from borrowing money, thereby increasing his overall indebtedness. 1 Citers Â Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyds Rep 417 2002 McGonigal J Litigation Practice The court ordered relief by way of disclosure against a third party: "In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why the principle is limited to disclosure of the identity of an unknown wrongdoer and does not extend to information showing that he has committed the wrong. . The information held by [the respondent] may not conclusively reveal an alternate defendant to [one of the alleged wrongdoers] nor conclusively disclose who received any part of the prepayment moneys, but I am satisfied that there is a sufficient prospect that the information they hold will assist [the applicant] in its search for wrongdoers and the funds paid away …to justify making the orders sought . . The potential advantages to [the applicant] of seeing this part of the jigsaw and the potential disadvantages of it being denied a sight of that part outweigh, in my view, any detriment to [the respondent]." 1 Cites 1 Citers Â SSQ Europe SA v Johann and Backes OHG [2002] 1 Lloyd's Rep. 465 2002 Litigation Practice Extension of time to challenge court's jurisdiction. 1 Citers Â Morris v The Bank of America National Trust and Savings Association (Amendment of Claim) [2002] EWCA (Civ) 425 2002 Litigation Practice Whether party should be allowed to amend pleadings shortly before a trial. 1 Cites 1 Citers Â Â Berg v IML London Ltd; 2002 - [2002] 1 WLR 3271; [2002] All ER (D) 46; [2002] 4 All ER 87 Â Cantor Index Ltd v Lister [2002] CP Rep 25 2002 Neuberger J Litigation Practice The court held that a defendant subject of an asset freezing order, who borrows money, does thereby increase his indebtedness but does not dispose of, deal with or diminish the value of his "assets" within the meaning of the standard form of freezing order. By borrowing money and spending the borrowed money the defendant may reduce his net asset position but that is not what he is restrained from doing by the standard form of wording. 1 Citers Â Taylor v Anderson and Taylor Brothers Plant Hire Ltd [2002] EWCA Civ 1680 2002 CA Chadwick LJ Litigation Practice Chadwick LJ said: "proceedings ought not to be struck out unless an unequivocal affirmative answer can be given to the question: is there a substantial risk that a fair trial is impossible?" 1 Citers Â Re H (Mackenzie Friend: Pre-trial Determination) [2002] 1 FLR 39 2002 Family, Litigation Practice The presumption in favour of permitting a Mackenzie friend is a strong one. 1 Citers Â Â S v S; 2002 - [2002] 3 WLR 1372 Â Karl Construction Limited v Palisade Properties Plc [2002] ScotCS 350; 2002 SC 270 14 Jan 2002 SCS Lord Drummond Young Scotland, Litigation Practice, Human Rights The maintenance of procedural safeguards is necessary if the use of the Mareva injunction procedure is not to be held to be incompatible with article 1 of the First Protocol to the European Convention on Human Rights. 1 Citers [ ScotC ] - [ Bailii ] Â Â Ansol Ltd v Taylor Joynson Garrett (a Firm) and Others; ChD 15-Jan-2002 - Times, 30 January 2002 Â Practice Direction (Judgments: Neutral citation) Times, 17 January 2002 17 Jan 2002 LCJ Lord Woolf, Lord Chief Justice Litigation Practice The practice of using the system of neutral Citation of judgements is extended to all divisions of the High Court where the judgement was given in London, with effect from January 14 2002. Numbers will be issued automatically in London, and on request from judges outside London. It will be unnecessary to include the descriptive word in brackets when citing the paragraph number of a judgment. Thus paragraph 59 in Smith v Jones (2002) EWHC 124 (QB) would be cited: Smith v Jones (2002) EWHC 124 at (59). 1 Cites Â De Crittenden v Bayliss [2002] EWCA Civ 50 17 Jan 2002 CA Litigation Practice The defendant appealed a judgment saying the arrangement under which the plaintiff had conducted the litigation was champertous. Held: The appeal failed. "[A]lthough some of what Mr De Crittenden did could be described as "solicitors work", none of it was work that was peculiar to a solicitor, nor work that a client himself might not very well undertake with, no doubt, the advice and instructions of a solicitor in preparing his own case." and "The question in champerty is . . . what was the nature of the interest, if any, of the claimant in the litigation? The structure whereby he is remunerated does not affect that question unless it demonstrates (and in this case as I have already indicated it does not) that there is no legitimate interest in the subject matter. " 1 Cites 1 Citers [ Bailii ] Â Â Base Metal Trading Ltd v Shamurin; CA 18-Jan-2002 - [2002] EWCA Civ 40 Â Â Barron, Regina (on the Application of) v Surrey County Council; CA 18-Jan-2002 - [2002] EWCA Civ 53 Â Embling v General Municipal Boilermakers Union [2002] EWCA Civ 108 22 Jan 2002 CA Litigation Practice Application out of time against refusal to allow appeal out of time. [ Bailii ] Â Begum v Yousaf [2002] EWCA Civ 187 23 Jan 2002 CA Litigation Practice [ Bailii ] Â Lilly Icos Ltd v Pfizer Ltd (No 2) Times, 28 January 2002; Gazette, 06 March 2002; [2002] EWCA Civ 2; [2002] 1 WLR 2253 23 Jan 2002 CA Lord Justice Aldous, Lord Justice Buxton and Lord Justice Longmore Intellectual Property, Litigation Practice, Civil Procedure Rules, Information The respondent sought an order to maintain the confidentiality of documents disclosed during patent revocation proceedings. It now appealed an order refusing confidentiality. Held: Under normal circumstances, a party requesting such an order must provide clear reasons for it to be granted. The court should recognise the lack of protection which would attach to a document disclosed during proceedings but then, however it arose, coming into third party hands. In this case, the figures sought to be protected were figures for marketing costs. Patent cases were subject to the same general rules as any other cases, but did present some particular problems, and were subject to some particular considerations. The sensitivity of such figures was recognised, and the court should have granted protection, allowing for the limited part it played in the trial. Civil Procedure Rules 31.22 1 Citers [ Bailii ] - [ Bailii ] Â Kuwait Oil Tanker Company S A K Sitka Shipping Incorporated v UBS Ag [2002] EWCA Civ 34 25 Jan 2002 CA Lord Justice Peter Gibson, Lord Justice Laws, And, Lord Justice Longmore, Banking, Litigation Practice, Civil Procedure Rules, International Officers of the claimant had been found to have defrauded the plaintiff of many millions of pounds. Money had been paid through the defendant, a Swiss bank, and a garnishee order was sought. There was no presumption that, merely because a debt was a foreign debt, garnishee relief should be refused. The real issue was any possibility of double jeopardy, not whether the order of an English court would be recognised. Swiss law debarred disclosure of any of the details suggested, and payment under a garnishee order would not discharge the bank's debt to its client. The debt constituted by a bank account is located in whatever country the account is kept. Nevertheless the order was being sought to be enforced in England, and the Swiss courts did not have exclusive jurisdiction. The case was remitted to the divisional court to consider the issue of double jeopardy. Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 Art 16(5) - Civil Procedure Rules 50.1 1 Cites [ Bailii ] Â C and B Scene Concept Design Ltd v Isobars Ltd [2002] EWCA Civ 46; [2002] BLR 93 31 Jan 2002 CA Lord Justice Potter, Lord Justice Rix, And, Sir Murray Stuart-Smith Construction, Arbitration, Litigation Practice The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. Errors of procedure, fact or law are not sufficient to prevent enforcement of an adjudicator's decision by summary judgment. In this case there was agreement as to the scope of the dispute, and the Adjudicator's decision, even with errors of law as to the relevant contractual provisions, is still binding and enforceable until the matter is corrected in the final determination. Appeal allowed. 1 Cites 1 Citers [ Bailii ] Â Lewis v Eliades and Others Times, 28 February 2002 1 Feb 2002 QBD McCombe J International, Litigation Practice The claimant sought judgment in the USA, and obtained an ex parte world-wide asset freezing order in the UK. When he applied for the order to be extended, the application was withdrawn. Held: Those advising foreign litigants to apply for such orders here, should remember, and respect, the particular difficulties involved. In particular the legal obligations may be different, and in what were usually very complicated situations financially, the UK lawyer taking a case on needs to take and be given the opportunity and time to assimilate the case properly. Civil Jurisdiction and Judgments Act 1982 25 Â Time Group Limited v Computer 2000 Distribution Limited and IBM United Kingdom Limited [2002] EWHC 126 (Technology) 4 Feb 2002 TCC His Honour Judge Bowsher QC Contract, Litigation Practice Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of process, and for discovery. A previous action had been settled against the second defendant. Allegations were made of computers being sold when they were known to be defective. Time sought to encourage the first defendant to join in IBM as Part 20 defendant, and agreed to limit its claim to assist. Held: Pursuing one defendant and limiting the claim to what that defendant might recover from a third party, was not necessarily wrong. Abuse was possible when an issue was pursued which could have been dealt with in earlier proceedings. Time had not joined the first defendant in the first action. That rule is now capable of applying, even where the parties were different. When abuse is revealed, the court has a duty, not a discretion, to dismiss the action. Held: Here the claimant was acting in a devious way, and the claim was an abuse and was to be struck out. 1 Cites 1 Citers [ Bailii ] - [ Bailii ] Â Â Taylor v Lawrence; CA 4-Feb-2002 - Times, 04 February 2002; Gazette, 21 March 2002; [2002] EWCA Civ 90; [2002] 2 All ER 353; [2002] 3 WLR 640; [2003] QB 528 Â Gloyne v Richardson and Another [2002] EWCA Civ 166 6 Feb 2002 CA Aldous, Laws LJJ Litigation Practice Application to amend order under slip rule. [ Bailii ] Â Malkan v West Midlands Regional Health Authority [2002] EWCA Civ 220 8 Feb 2002 CA Mummery LJ Litigation Practice Application for permission to appeal and for an extension of time in which to appeal. [ Bailii ] Â Watson and others v O'Driscoll [2002] EWCA Civ 342 11 Feb 2002 CA Litigation Practice [ Bailii ] Â Sumitomo Corporation v Credit Lyonnais Rouse Ltd [2002] EWHC 253 (Comm) 14 Feb 2002 ComC Langley J Litigation Practice [ Bailii ] Â Sumitomo Corporation v Credit Lyonnais Rouse Ltd (2) [2002] EWHC 124 (Commercial) 14 Feb 2002 ComC Langley J Litigation Practice Separate trials of issues between the parties. [ Bailii ] Â Johnson v Gore Wood and Co (A Firm) [2002] EWHC 776 (QB) 20 Feb 2002 QBD The Hon Mr Justice Hart Litigation Practice The claimant alleged negligence by the defendant solicitors. 1 Cites 1 Citers [ Bailii ] Â Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) [2002] EWCA Civ 248; [2002] CLC 870; [2002] Lloyds Rep IR 612 1 Mar 2002 CA Lord Justice Brooke, Lord Justice Mance, And, Mr Justice Park Insurance, Litigation Practice Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the investigation, and had not acted in a proper and businesslike manner. The judge refused an application to allow to be considered matters which had been raised in statements but not pleaded. Held: At this stage, the issues were clearly in need of being settled, and judgment under Order 24 was inappropriate. 1 Cites 1 Citers [ Bailii ] Â Kufaan Publishing Ltd v Al-Warrak Publishing Ltd Unreported, 1 March 2002 1 Mar 2002 CA Potter LJ Defamation, Litigation Practice 1 Cites 1 Citers Â Hayes v Charman Underwriting Agencies Ltd [2002] EWCA Civ 312 4 Mar 2002 CA Brooke LJ, Mummery LJ Litigation Practice Renewed application for permission to appeal. 1 Cites [ Bailii ] Â Â S v S (Ancillary Relief: Consent Order); FD 4-Mar-2002 - Gazette, 11 April 2002; [2002] 3 WLR 1372; [2003] Fam 1; [2002] 1 FLR 992; [2002] IDS Pensions Law Reports 219 Â Â Woodhouse v Consignia Plc; Steliou v Compton; CA 7-Mar-2002 - [2002] 1 WLR 2558; [2002] 2 All ER 737; Times, 05 April 2002; Gazette, 18 April 2002; [2002] EWCA Civ 275; [2002] All ER (D) 79 Â Tibbs v London Borough of Islington [2002] EWCA Civ 362 8 Mar 2002 CA Tuckey LJ Litigation Practice, Local Government, Torts - Other Application for leave to appeal against refusal to allow amendment to pleadings. She sought damages. The council had pursued her to bankruptcy for substantial sums of alleged arrears of Council Tax, but those claims were rejected by the trustee. Both the bankruptcy and the extension of it were caused by the council's wrongful claims. Held: New evidence substantially changed the prospects of success, and the appeal should proceed. [ Bailii ] Â Matthew Heasman v J M Taylor and Partners [2002] ScotCS 63; 2002 SC 326 8 Mar 2002 SCS Lord Coulsfield and Lord Hamilton and Lord Johnston Scotland, Human Rights, Litigation Practice Appropriateness of use of jury in civil trials in Scotland. 1 Citers [ ScotC ] - [ Bailii ] Â Deg-Deutsche Investitions-Und Entiwicklungsgesellschaft Mbg v Koshy and others [2002] EWCA Civ 484 11 Mar 2002 CA Chadwick LJ, Charles J Litigation Practice, Damages Claim for damages after lifting of freezing order. [ Bailii ] Â Leicester v Lyedale Ltd Liquidators and Another [2002] EWCA Civ 471 12 Mar 2002 CA Arden LJ Litigation Practice, Insolvency Application for leave to appeal. [ Bailii ] Â Olatawura v Abiloye [2002] EWCA Civ 364; [2002] All ER (D) 253 (Jul) 14 Mar 2002 CA Pill, Longmore LJJ Litigation Practice Appeal from strike out of clim for failure to pay sum into court. 1 Citers [ Bailii ] Â Reed and others v Oury and others [2002] EWHC 369 (Ch) 14 Mar 2002 ChD Costs, Litigation Practice The court should only exercise its power under the Civil Procedure Rules Part 3 to require a payment in only in limited circumstances, and not do so unless the party against whom the order was sought had acted in bad faith. Civil Procedure Rules 1 Citers [ Bailii ] Â Practice Statement (Admiralty and Commercial Courts: Procedure) Times, 02 April 2002 18 Mar 2002 ChD Litigation Practice, Civil Procedure Rules The three rules listed in the Civil Procedure Rules, should also be applied in the Admiralty and Commercial Courts, with effect from March 25 2002. Child marks the change over to the Civil Procedures Rules from the Commercial Court Guide, for much business in those courts, and a new edition of the Guide has been issued. The Guide remains in effect for matters not covered by the Rules and Practice Directions. An electronic version of the Court Guide is available on the Court Service web site. Civil Procedure Rules 58 61 62 Â Bakewell Management Ltd v Brandwood and Others Times, 19 April 2002; Gazette, 10 May 2002 21 Mar 2002 ChD Mr Justice Park Land, Litigation Practice The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant's activity a crime, and that, following Hanning, criminal activity could not be used to found a claim of adverse possession. The claimant countered that an argument as to the doctrine of lost modern grant had not been proposed in Hanning, and that Hanning should accordingly be overruled. Held: It was not for a High Court judge to go against a precedent set by the Court of Appeal, save in exceptional circumstances. In Hanning, particularly, leave to appeal had been refused by the House of Lords. The court was bound to find in favour of the land owner. Law of Property Act 1925 193(4) 1 Cites 1 Citers Â Â Maridive and Oil Services (SAE) and Another v CNA Insurance Company (Europe) Ltd; CA 25-Mar-2002 - [2002] EWCA Civ 369; [2002] 2 Lloyd's Rep 9; [2002] 2 LLR 9; [2002] 1 All ER (Comm) 653 Â Smith and Another v Hughes and Another [2002] EWCA Civ 492 25 Mar 2002 CA Buxton LJ Litigation Practice Application for permission to appeal rejected on non-attendence of appellant. [ Bailii ] Â The Police Complaints Authority and Others v Regina [2002] EWCA Civ 389; [2002] UKHRR 985 26 Mar 2002 CA Lord Justice Simon Brown Police, Human Rights, Litigation Practice Simon Brown LJ said: "Given the PCA's right under section 76(7)(b) to such other information as they need for the purpose of reaching their section 76 decision, I am inclined to think that, if, after obtaining the complainant's comments upon any other witnesses' statements disclosed to him, they thought it necessary, they could require the investigation to be re-opened." Police Act 1996 76(7)(b) 80(1)(a) 1 Cites 1 Citers [ Bailii ] Â A v B and Another [2002] EWCA Civ 496 28 Mar 2002 CA Lord Woolf of Barnes Litigation Practice 1 Cites [ Bailii ] Â Â Housen v Nikolaisen; 28-Mar-2002 - [2002] 2 SCR 235; 2002 SCC 33 Â Matthews v Ministry of Defence and Another [2002] EWCA Civ 533 10 Apr 2002 CA Mummery, Hale LJJ Human Rights, Litigation Practice Crown Proceedings Act 1947 10 - European Convention on Human Rights [ Bailii ] Â Peaceful Warrior Limited v Philips Electronics Nv [2002] EWCA Civ 507 17 Apr 2002 CA Lord Justice Brooke Litigation Practice Application restricting right of claimant to make applications without consent of court. [ Bailii ] Â Todd and Others v Adams and Another Times, 03 May 2002; Gazette, 23 May 2002; [2002] 2 Lloyds Law Rep 293; [2002] 2 All ER (Comm) 1 18 Apr 2002 CA Lord Justice Thorpe, Lord Justice Mance and Mr Justice Neuberger Transport, Health and Safety, Damages, Litigation Practice The boat owners had failed to comply with the 1975 safety rules, and seamen died. The boat owners relied upon the restriction on damages in the 1995 Act, and the seamen's families argued that the failure to apply the safety rules removed that limitation. Held: A breach of the safety rules did not give rise to a separate cause of action for damages against the ship owners. The system for certifying vessels would sit uneasily with any other interpretation, and a criminal remedy was also provided for. The court distinguished between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts. Mance LJ said: "With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of 'review' may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment—such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was 'wrong' and to 'draw any inference of fact which it considers justified on the evidence' indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. . In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious." Neuberger J stressed that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Merchant Shipping Act 1995 185(1) - Fishing (Safety Provisions) Rules 1975 (SI 1975 No 330) 16 1 Citers Â Dardana Ltd v Yukos Oil Company [2002] EWCA Civ 584 18 Apr 2002 CA Thorpe, Mance, Neuberger LJJ Litigation Practice The court was asked as to the appropiateness of making a split order. 1 Cites 1 Citers [ Bailii ] Â Â On Demand Information Plc and others v Michael Gerson (Finance) Plc and others; HL 18-Apr-2002 - Times, 02 May 2002; Gazette, 23 May 2002; [2002] UKHL 13; [2003] 1 AC 368; [2002] CLC 1140; [2002] 1 All ER (Comm) 641; [2002] BCC 673; [2002] 2 WLR 919; [2002] 2 All ER 949 Â London Borough of Hounslow v Martin-Samos [2002] EWCA Civ 544 19 Apr 2002 CA Arden LJ Litigation Practice (Very short judgment) Application for leave to appeal - stood down. [ Bailii ] Â Robinson v Colin Watson and Co (A Firm) and Another [2002] EWCA Civ 698 19 Apr 2002 CA Professional Negligence, Litigation Practice Second appeal against refusal to allow joinder of additional party. [ Bailii ] Â Neal v Jones (T/A Jones Motors) [2002] EWCA Civ 604 19 Apr 2002 CA Litigation Practice Application for admission of evidence (very short judgment). [ Bailii ] Â Â Bhamjee v Norwich Union General Insurance; CA 22-Apr-2002 - [2002] EWCA Civ 738 Â Knauf UK Gmbh v British Gypsum Ltd and Another [2002] EWHC 739 (Commercial) 23 Apr 2002 ComC Litigation Practice 1 Cites [ Bailii ] Â Thakerar v Northwich Park Hospital NHS Trust [2002] EWCA Civ 617 24 Apr 2002 CA Litigation Practice, Personal Injury [ Bailii ] Â Ratra v Attorney General [2002] EWCA Civ 742 26 Apr 2002 CA Litigation Practice [ Bailii ] Â English v Emery Reimbold and Strick Ltd; etc, (Practice Note) Times, 10 May 2002; Gazette, 30 May 2002; [2002] EWCA Civ 605; [2002] 1 WLR 2409; [2002] 3 All ER 385; [2003] IRLR 710 30 Apr 2002 CA Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Latham and Lady Justice Arden Human Rights, Litigation Practice, Costs In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision. Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the decision in their case had been arrived at. Flannery preceded the Act. Reasons may be implicit from the finding itself, and in such cases more detailed reasons may not be necessary. The need varied from case to case. For costs orders, only in those cases where an order with neither reasons nor any obvious explanation was it likely to be appropriate to give permission to appeal for lack of reasons. if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. "Justice will not be done if it is not apparent to the parties why one has won and the other has lost". This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision. European Convention on Human Rights Art 6 1 Cites 1 Citers [ Bailii ] Â Perotti v Watson [2002] EWCA Civ 662 30 Apr 2002 CA Litigation Practice [ Bailii ] Â Plymouth City Council v Hoskin [2002] EWCA Civ 684 1 May 2002 CA Litigation Practice Access to Justice Act 1999 54 1 Cites 1 Citers [ Bailii ] Â Â Wragg and Another v Partco Group Ltd UGC Ltd; CA 1-May-2002 - Times, 10 May 2002; Gazette, 07 June 2002; [2002] EWCA Civ 594; [2002] 2 BCLC 323; [2002] 2 LLR 343 Â Knight v Sage Group Plc [2002] EWCA Civ 811 7 May 2002 CA Litigation Practice [ Bailii ] Â Ansari and Others v Puffin Investment Co Ltd and Others Times, 17 July 2002 8 May 2002 QBD Burton J Litigation Practice The defendant appealed against a summary order of a Master. Should this be by way of a rehearing or by way of review, where the sole ground of the appeal was that the Master had failed to give reasons for his decision, and where the court had refused to give its reasons after request or where there was some other reason for not requesting reasons? Held: The High Court did have the choice of dealing with such an appeal by way of a rehearing notwithstanding the case of Lewis. 1 Cites Â De Maynard v Adu [2002] EWCA Civ 717 9 May 2002 CA Latham LJ Litigation Practice Request for leave to appeal - refused. [ Bailii ] Â Borealis Ab v Stargas Ltd and Another [2002] EWCA Civ 757 9 May 2002 CA Litigation Practice [ Bailii ] Â Hewlett-Packard Gmbh and Another v Waters Corporation and Another [2002] EWCA Civ 718 10 May 2002 CA Litigation Practice Leave to appeal to the House of Lords refused. [ Bailii ] Â Â Nathan v Smilovitch and Another; CA 13-May-2002 - [2002] EWCA Civ 759 Â Â Sayers v Clarke Walker (A firm); CA 14-May-2002 - Times, 03 June 2002; [2002] EWCA Civ 645; [2002] 3 All ER 490; [2002] 1 WLR 3095; [2002] CP Rep 61 Â Fawdry and Co (A Firm) v Murfitt [2002] EWCA Civ 643; [2003] QB 104 14 May 2002 CA Lord Justice Ward, Lord Justice Sedley And Lady Justice Hale Litigation Practice, Human Rights The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers. Held: The court considered the comon law doctrine of de facto officers. She was in fact not a judge of the High Court but had acted in good faith, and the parties had accepted her jurisdiction. The parties had received a fair trial before a lawfully constituted tribunal. European Convention on Human Rights 6(1) 1 Cites 1 Citers [ Bailii ] Â Barlcays Bank Plc v Alcorn [2002] EWCA Civ 817 17 May 2002 CA Chadwick LJ Land, Litigation Practice, Human Rights Renewed application for leave to appeal. Access to Justice Act 1999 55 - European Convention on Human Rights 8 A1 FP - Administration of Justice Act 1970 36 1 Cites [ Bailii ] Â Wells v Pickering Times, 04 June 2002; Gazette, 27 June 2002 17 May 2002 ChD Mr David Oliver, QC Land, Children, Litigation Practice The rules required a court, looking to enforce a charging order, to look to any other competing proprietary interests. The claimant suggested that this should include the welfare interests of any child occupying the property as his or her home. Held: The welfare interests were not proprietary interests. The rules made no specific provision for such interests and the normal rules applied. Rules of the Supreme Court Order 88, rule 5A(2)(f) Â Cullen v Whinhurst Investments Ltd [2002] EWCA Civ 825 23 May 2002 CA Litigation Practice Application to re-instate application for leave to appeal. [ Bailii ] Â Strandberg and Another v Union Cal Ltd [2002] EWHC 1538 (Commercial) 23 May 2002 ComC Litigation Practice Investment losses were suffered due to the fall in stock market values in October 1997. In a previous action, the brokers had been held not liable to investors for negligence. The Court of Appeal in previous action had refused leave to appeal out of time on points not argued in court below. It was an abuse of process for investors to start a new action relying on those same new points. Henderson v Henderson and Johnson v Gore Wood were applied. [ Bailii ] Â J Wright and H Wright v Newcastle Ltd and others Unreported, 25 May 2002 25 May 2002 CA Waller LJ Litigation Practice Where proceedings were compromised, one could not say that the issues settled were res judicata but nonetheless it would be an abuse of process to allow the same issues to be relitigated later. If in later proceedings a party raised an issue which had been raised in earlier proceedings, it was necessary to decide what issues had been settled in the first litigation. If proceedings were stayed pursuant to a Tomlin order, all issues arising in those proceedings were stayed. 1 Citers Â Whitehead and Another v Household Mortgage Corporation Plc [2002] EWCA Civ 912 27 May 2002 CA Litigation Practice Renewed application for leave to appeal. 1 Citers [ Bailii ] Â Carrick v Kingston Upon Hull City Council [2002] EWCA Civ 1376 27 May 2002 CA Ward LJ Litigation Practice Applications for permission to appeal refusal of stay of execution of order for costs. [ Bailii ] Â Jones v Williams [2002] EWCA Civ 897 27 May 2002 CA Buxton LJ Litigation Practice 1 Citers [ Bailii ] Â Bessant and others v South Cone Incorporated; in re REEF Trade Mark Times, 31 May 2002; [2003] RPC 5; [2002] EWCA Civ 763 28 May 2002 CA Lord Justice Robert Walker, Lord Justice Buxton and Lord Justice Clarke Intellectual Property, Litigation Practice The Reef pop group applied to register "REEF" for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of "Reef Brazil" for the footwear which also was included in Class 25. South's reputation was primarily amongst surfers. The Hearing Officer conducted a "multi-factorial" comparison, and rejected the opposition based on the likelihood of confusion. The appellant challenged mixed findings of fact and law. Held: The appeal was allowed. When an appeal court considered setting aside a first instance decision, it must look to the several factors affecting the decision as they appeared in each individual case. The opposition had been rejected by the principal officer, then allowed by the judge. The judge should not have reversed the hearing officer on the section 5(2) issue. The hearing officer had not erred in principle, and nor was he clearly wrong. He had to make a multi-factorial comparison, evaluating similarities to reach conclusions about likelihood of confusion and a notional passing-off. He was experienced, and the Civil Procedure Rules do not diminish the respect shown to a hearing officers. But he did not hear oral evidence, and therefore an appellate court should show a real reluctance, but not the very highest degree to interfere in the absence of a distinct and material error of principle. Trade Marks Act 1994 5(2) 5(4) 1 Cites 1 Citers [ Bailii ] Â Athletic Union of Constantinople v National Basketball Association and Others Times, 13 June 2002; Gazette, 18 July 2002; [2002] EWCA Civ 830; [2002] 1 WLR 2863 28 May 2002 CA Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Robert Walker and Lord Justice Clarke Arbitration, Litigation Practice A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal. Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave granted in excess of jurisdiction. The parties had argued that the arbitration itself was in excess of jurisdiction, but that did not affect the current issue. Arbitration Act 1996 76 - Civil Procedure Rules 52.9 1 Cites 1 Citers [ Bailii ] Â Mohamad Al Fayed v The Commissioner of Police of the Metropolis Gazette, 01 August 2002; [2002] EWCA Civ 780; A2/2002/0758 29 May 2002 CA Lord Justice Walker, Lord Phillips MR, Clarke LJ Litigation Practice, Civil Procedure Rules, Equity During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also sought public interest immunity. Held: A solicitor considering documents released to him owes no duty to the disclosing party. Once disclosure has in fact been made, it is too late to seek an injunction to protect the document against use, save in the case of an obvious mistake. The court is exercising an equitable jurisdiction, and there are no rigid rules. There had been discussions about the disclosure or withholding of different documents on different grounds, and the mistake need not have been obvious. The injunction was discharged. Clarke LJ set out the principles applicable: "In our judgment the following principles can be derived from those cases: i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not. ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents. iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived. iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief. v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud. vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake. vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and: a) the solicitor appreciates that a mistake has been made before making some use of the documents; or b) it would be obvious to a reasonable solicitor in his position that a mistake has been made; and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief. viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court. ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances. x) Since the court is exercising an equitable jurisdiction, there are no rigid rules." Civil Procedure Rules 31.2 1 Cites 1 Citers [ Bailii ] Â Green v Vickers Defence Systems and Others Times, 01 July 2002; Gazette, 01 August 2002 12 Jun 2002 CA Ward, Clarke, Collins LJJ Personal Injury, Litigation Practice, Damages The deceased died after commencing a claim for personal injuries for mesothelioma. The action had been compromised with an agreement for a provisional consent order. After his death, his widow sought to claim on the basis as settled. Held. Having settled the action on the basis that if the deceased developed the disease, he would be compensated on a full liability basis, it was not now open to the company to go back on that agreement. The parties could have formed an agreement which left open such questions, but they had not done so. 1 Cites Â Clarke v Coutts and Co (A Firm) [2002] EWCA Civ 928 17 Jun 2002 CA Litigation Practice The court refused to allow a very late amendment raising a new point. 1 Cites 1 Citers [ Bailii ] Â In Re Northern Ireland Human Rights Commission Northern Ireland Times, 25 June 2002; [2002] UKHL 25 20 Jun 2002 HL Lord Slynn of Hadley, Lord Woolf, Lord Nolan, Lord Hutton and Lord Hobhouse of Woodborough Human Rights, Litigation Practice, Northern Ireland, Coroners The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to do so. Held: It was the intention in the Act to extend the powers of the commission. There were no express powers in the Act to make such an intervention, and as a purely statutory body, it had only those powers given to it. However, it had general powers to do such things as were appropriate to promote understanding of Human Rights law, and that would include the power to become involved in an inquest in the way suggested. Northern Ireland Act 1998 69 1 Cites [ House of Lords ] - [ Bailii ] Â Motorola Credit Corporation v Uzan and Others Times, 10 July 2002; Gazette, 30 August 2002 26 Jun 2002 CA Lord Woolf, Lord Chief Justice, Lord Justice Waller and Lord Justice Sedley Litigation Practice, Contempt of Court A world wide asset freezing order had been made. The defendants sought that it be set aside. Pending the hearing of their application, they sought also delay of their obligation to co-operate in providing full details of their finances. Held: The asset freezing order remained in place. To be effective the information was needed from the defendant. Since they accepted that the order must continue, it followed that the means enquiry must also take place. Where an appeal is grounded on an alleged lack of jurisdiction to make the (disobeyed) order at all, it was generally right to hear the contemnor: "we bear in mind that the defendants’ appeals are essentially defensive in nature. Their stance in this jurisdiction has been one of resistance to a series of restrictive and intrusive orders sought by the claimant in foreign proceedings, rather than a voluntary invocation of the powers of the English court for their own benefit. This seems to us to bear on the proportionality of precluding them, as parties in contempt, from what would otherwise be their right of appeal against the freezing orders to which the orders for cross-examination were ancillary. In all the circumstances, we take the view that the defendants should be heard upon, and their arguments treated as addressed to, all of their appeals and applications now before us." 1 Citers Â Sayers v Clarke Walker (A Firm) [2002] EWCA Civ 910 26 Jun 2002 CA Litigation Practice, Legal Professions 1 Cites 1 Citers [ Bailii ] Â Scarth v Yorkshire Post Newspapers [2002] EWCA Civ 930 26 Jun 2002 CA Simon Brown LJ Litigation Practice The applicant sought leave to appeal. It was hopeless. [ Bailii ] Â Â Medcalf v Mardell, Weatherill and Another; HL 27-Jun-2002 - Times, 28 June 2002; Gazette, 08 August 2002; [2002] UKHL 27; [2002] 3 All ER 731; [2003] 1 AC 120; [2002] NPC 89; [2002] PNLR 43; [2002] 3 WLR 172; [2002] CP Rep 70; [2002] CPLR 647; [2002] 3 Costs LR 428 Â Burley v Joseph W Burley Partners Ltd and Another [2002] EWCA Civ 1163 2 Jul 2002 CA Sir Andrew Morritt VC, Rix LJ Litigation Practice Appeal against summary judgment. Held: The appeal was granted. [ Bailii ] Â Ashleigh-Nicholson v Staffordshire Police and Another [2002] EWCA Civ 995 2 Jul 2002 CA Litigation Practice [ Bailii ] Â Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] EWCA Civ 1005 3 Jul 2002 CA Litigation Practice, Personal Injury, Damages 1 Citers [ Bailii ] Â Walsh Automation (Europe) Ltd v Bridgeman and others [2002] EWHC 1344 (QB) 4 Jul 2002 QBD Eady J Litigation Practice [ Bailii ] Â Morgan Grenfell Development and others v Arrows Autosports Limited etc [2002] EWHC 1329 (Ch) 4 Jul 2002 ChD The Hon Mr Justice Lightman Litigation Practice Interim application for release from undertakings. [ Bailii ] Â ABCI v Banque Franco Tunisienne and others [2002] EWCA Civ 1117 5 Jul 2002 CA Torts - Other, Litigation Practice, Arbitration Renewed application for leave to appeal. 1 Citers [ Bailii ] Â Hinchcliffe v HSBC Plc and Another [2002] EWCA Civ 1165 5 Jul 2002 CA Banking, Litigation Practice [ Bailii ] Â Eronat v Tabbah [2002] EWCA Civ 950 10 Jul 2002 CA Sir Christopher Slade Litigation Practice 1 Citers [ Bailii ] Â Chainrai v Boston Unreported, 11 July 2002 11 Jul 2002 Henriques J Litigation Practice 1 Citers Â Deepak Fertilisers and Petrochemical Limited v Davy McKee (UK) London Limited [2002] EWCA Civ 1396 12 Jul 2002 CA Latham LJ Litigation Practice "The general rule in adversarial proceedings, as between the parties, is that one party should not be entitled to impugn the evidence of another party's witness if he has not asked appropriate questions enabling the witness to deal with the criticisms that are being made. This general rule is stated in Phipson on Evidence 15th Ed at para 11-26 in the following terms: "As a rule a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share, eg if the witness has deposed a conversation, the opposing counsel should put to the witnesses any significant differences from his own case. If he asks no questions he will generally be taken to accept the witness's account and will not be permitted to attack it in his final speech ... Failure to cross-examine will not, however, always amount to acceptance of the witness's testimony, if for example the witness has· had notice to the contrary beforehand, or the story itself is of an incredible or romancing character"." 1 Citers [ Bailii ] Â Three Rivers District Council and others v HM Treasury and Another [2002] EWCA Civ 1071 16 Jul 2002 CA Litigation Practice Brief ruling as to dismissal of claim for want of jurisdiction. The Court had insufficient information to make that decision. [ Bailii ] Â Taylor v Williamsons (a Firm) Times, 09 August 2002; Gazette, 19 September 2002; [2002] EWCA Civ 1380 17 Jul 2002 CA Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke Litigation Practice, Natural Justice The judge concluded hearing evidence, and requested counsel to make their submissions before a certain date. Before that date, and forgetful of his request, he issued his judgement. On realizing his mistake, he withdrew his judgment. The claimant appealed his refusal to recuse himself and order a re-trial. Held: This was an unfortunate case, but there was no element of bias, and the judge having corrected his mistake could not be thought to be biased. A fair minded and informed observer would not have seen bias. 1 Cites [ Bailii ] Â Â Olakunle O Olatawura v Alexander O Abiloye; CA 17-Jul-2002 - Times, 24 July 2002; Gazette, 19 September 2002; [2002] EWCA Civ 998; [2003] 1 WLR 275 Â Â Barings Bank Plc and Another v Coopers and Lybrand (A Firm) and others; CA 18-Jul-2002 - [2002] EWCA Civ 1155 Â Koch Shipping Inc v Richards Butler (a Firm) Times, 21 August 2002; Gazette, 26 September 2002; [2002] EWCA Civ 1280; [2002] 2 All ER Comm 957; [2002] 1 PNLR 603 22 Jul 2002 CA Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke Legal Professions, Litigation Practice The claimants in an arbitration sought orders with regard to a solicitor who had moved to the opponent's firm of solicitors, but who came with privileged knowledge of the claimant's business dealings. She offered undertakings, but the claimant viewed these as inadequate. The respondent firm of solicitors appealed an order to withdraw from the action. Held: Each such case must turn on its facts. Here there was no reason to doubt the high professionalism, skills and integrity of the solicitor in question. The situation differed from that in Bolkiah. It was fanciful to imagine her inadvertently letting something slip to the detriment of the claimant. Tuckey LJ warned that: "In these days of professional and client mobility it is of course important that client confidentiality should be preserved. Each case must depend on its own facts but I think there is a danger inherent in the intensity of the adversarial process of courts being persuaded that a risk exists when, if one stands back a little, that risk is no more than fanciful or theoretical. I advocate a robust view with this in mind so as to ensure the line is sensibly drawn." 1 Cites 1 Citers [ Bailii ] Â Saxena v Rushforth and Another [2002] EWCA Civ 1129 23 Jul 2002 CA Litigation Practice Application for leave to appaeal out of time. [ Bailii ] Â Barnes v Handf Acceptances Ltd [2002] EWCA Civ 1238 25 Jul 2002 CA Litigation Practice Application for leave to appeal refused. [ Bailii ] Â Lloyds Bank v Cassidy [2002] EWCA Civ 1324 26 Jul 2002 CA Litigation Practice Application for leave to appeal - adjourned 1 Cites 1 Citers [ Bailii ] Â Arun Estates v Freeguard and Another [2002] EWCA Civ 1282 29 Jul 2002 CA Litigation Practice Offer of compromise - cheque sent but not received - offer withdrawn - no accord and satisfaction or estoppel [ Bailii ] Â Din v Ahmed and others [2002] EWCA Civ 1283 30 Jul 2002 CA Litigation Practice Application for permission to appeal. [ Bailii ] Â Michael John Miller (T/A Waterloo Plant) v Margaret Cawley Times, 06 September 2002; [2002] EWCA Civ 1100 30 Jul 2002 CA Lord Justice Simon Brown, Lord Justice Latham, Lord Justice Mance Litigation Practice At the end of the claimant's case the defendant wished to submit that there was no case for her to answer. The judge then put the defendant to an election as to whether or not she would call any evidence. She appealed. Held: It is not appropriate for a judge to apply the test of whether the claimant had any reasonable prospect of establishing liability of the part of the defendant, without first putting the defendant to an election. Having put her to the election it was wrong thereafter to seek to apply that test. A submission of no case to answer might be heard without requiring an election, but this could only be done with extreme caution. Having once heard a submission without an election, if the court rejected the submission, it must then hear the defendant's case. After an election, the issue was not whether the claimant had any reasonable prospect of success, but, having heard the evidence which was to be called, whether in fact the claim was or was not made out. "… considerable caution is necessary before a judge entertains such a submission [of no case to answer] or undertakes such a determination, without requiring an election [by the defendant not to call evidence]. The trial is now in progress, and although the test (no real prospect) differs from that applicable after hearing all possible evidence (balance of probability) caution is dictated. … The submission interrupts the ordinary trial process, and it is not desirable that, during that process, the judge of fact should be put in a position where he may find himself having to express first an initial view on the basis of taking the claimant's evidence alone and then (if he allows the claim to proceed) a further final view after taking into account further evidence, even though he does so by reference to different tests." 1 Cites 1 Citers [ Bailii ] Â Sohal v Sohal [2002] EWCA Civ 1297 30 Jul 2002 CA Sir Martin Nourse Litigation Practice, Wills and Probate It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal. Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: "There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf in Wood v Gahlings, the allegation of fraud 'can be clearly established' or if, in the words of Lord Phillips (which come to the same thing) the fresh evidence or its effect is not 'hotly contested'. In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside." As to Hamilton, "Those observations must be accorded every respect. I do not think that they can have been intended to depart from what was said in paragraphs 8 and 14. Whether that be right or wrong, it is clear that each case must be judged on its own merits. If this court takes the view that the fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action." 1 Cites 1 Citers [ Bailii ] Â Â Dunn v Bradford Metropolitan District Council etc; CA 31-Jul-2002 - Times, 05 September 2002; Gazette, 12 September 2002; [2002] EWCA Civ 1137; [2003] 15 HLR 154 Â Langley and others v Coal Authority [2002] EWCA Civ 1198 31 Jul 2002 CA Litigation Practice Application for leave to appeal. Granted. [ Bailii ] Â Compagnie Noga D'Importation et D'Exportation Sa v Australia and New Zealand Banking Group Ltd. and others [2002] EWCA Civ 1142; [2003] 1 WLR 307; [2003] CP Rep 5 31 Jul 2002 CA Litigation Practice, Civil Procedure Rules If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding. Civil Procedure Rules 1 Citers [ Bailii ] Â Britel Corporation Nv and Another v First Penthhouse Ltd and others [2002] EWCA Civ 1350 7 Aug 2002 CA Jonathan Parker LJ, Chadwick LJ Litigation Practice, Landlord and Tenant Application for permission against judge's refusal to continue interim injunctions. Held: Leave was refused. 1 Cites 1 Citers [ Bailii ] Â Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4) Times, 04 October 2002; Gazette, 10 October 2002; [2002] EWCA Civ 1182; [2003] 1 WLR 210; [2002] 4 All ER 881; [2003] CP Rep 9; [2003] CPLR 181 7 Aug 2002 CA The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene Litigation Practice, Civil Procedure Rules The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon the Bingham report, and they sought disclosure of documents provided to the Enquiry. They appealed findings that the actual respondents to the application did not have possession of the documents sought. The Treasury cross-appealed an order not requiring the claimant to specify the documents sought, saying that the threshold condition under the rules had not been met. Held: It was not necessary to show that it was more likely than not that the documents would be of assistance. The tests were to be applied to the class of documents, and not each document in turn. Appeals dismissed. ""likely" [within the rules] does not carry any necessary connotation of "more probable than not". It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature - or the rule-making body, as the case may be - intended a modest threshold of probability." Civil Procedure Rules 31.17(3)(a) 1 Cites 1 Citers [ Bailii ] Â Pepin v Taylor [2002] EWCA Civ 1245 16 Aug 2002 CA Litigation Practice, Defamation Application for permission to appeal against order made on case management hearing. The case related to defamation alleged to have taken place in an Internet Usenet group. The judge had made findings which the claimant, and this court found were not justified on the facts before it, and a substantial point of law may be at stake. Leave granted. [ Bailii ] Â Watson v Perotti [2002] EWCA Civ 1302 23 Aug 2002 CA Litigation Practice [ Bailii ] Â ABCI v Banque Franco-Tunisienne [2002] EWHC 2024 (Comm) 28 Aug 2002 ComC Arbitration, Litigation Practice 1 Cites 1 Citers [ Bailii ] Â ABCI v Banque Franco-Tunisienne [2002] EWHC 2024 (Comm) 28 Aug 2002 ComC Litigation Practice 1 Cites [ Bailii ] Â Hassan v Secretary of State for Home Department [2002] EWCA Civ 1363 10 Sep 2002 CA Thorpe, Kay LJJ Litigation Practice Formal rejection of discontinued appeal. [ Bailii ] Â Barnes v Handf Acceptances Ltd [2002] EWCA Civ 1417 13 Sep 2002 CA Litigation Practice Renewed appllication for leave to appeal refused. [ Bailii ] Â Jockey Club v Buffham [2003] QB 462; Times, 04 October 2002; Gazette, 17 October 2002; [2002] EWHC 1866 (QB) 13 Sep 2002 QBD Gray J Litigation Practice, Contempt of Court, Media, Intellectual Property A court had issued a final order with an injunction against the respondent against revealing matters becoming known to him during his employment by the claimant. The BBC sought a variation to allow it to broadcast material based upon that documents held by the defendant. Held: A final order was not binding against third parties. Once the proceedings had concluded, and a final order made, those proceedings could not be prejudiced, and the law of contempt no longer applied. The BBC was not bound by the injunction. 1 Cites 1 Citers [ Bailii ] Â Daly and Another v Sheikh [2002] EWCA Civ 1419 19 Sep 2002 CA Litigation Practice Application for payment of costs before appeal [ Bailii ] Â Ayobioj v London Borough of Camden [2002] EWCA Civ 1454 25 Sep 2002 CA Mummery LJ Employment, Litigation Practice Application for permission to appeal. Appellant not attending. [ Bailii ] Â Hart v Relentless Records Ltd, Relentless Music Publishing Ltd, Media Village PR Ltd Times, 08 October 2002; [2002] EWHC 1984 (Ch) 4 Oct 2002 ChD The Hon Mr Justice Jacob Human Rights, Litigation Practice, Natural Justice The judge had informally met counsel in the corridor outside court, and advised him of the need to settle the case. The client asked the judge to recuse himself, having compromised his independence and impartiality. Held: Such meetings were a proper part of litigation, and did much to assist avoidance of increased costs. In deciding whether to recuse himself a judge must ask whether a fair, informed and reasonable observer would consider there to be a real risk of bias. Such an observer would not so judge, and he declined to recuse himself. 1 Citers [ Bailii ] Â BG and Others v HMTQ 2002 BCSC 1417; 221 DLR (4th) 751; [2002] CarswellBC 2395; [2002] BCJ No 2246 (QL); [2002] BCTC 1417 7 Oct 2002 Wong J Media, Litigation Practice Supreme Court of British Columbia. The Court prohibited, until the conclusion of the proceedings, identification of school staff accused of abusing boys in an action brought by them in later life against the school. Held: The protection of innocent people was a social value of superordinate importance which, were they to suffer irreparable harm to their reputation, would justify overriding the general principle of open justice; that, accused of being paedophiles, the staff had been put in the category of persons most condemned and reviled by society; and that, were they to be publicly identified, they would suffer irreparable harm before they had had any opportunity to rebut the accusations. 1 Citers [ Canlii ] Â Jackson v Asda Stores Ltd [2002] EWCA Civ 1541 10 Oct 2002 CA Litigation Practice [ Bailii ] Â Markos v Goodfellow and others [2002] EWCA Civ 1542 11 Oct 2002 CA Litigation Practice Access to Justice Act 1999 54(4) [ Bailii ] Â Anthony Francis Riou Benson v Samantha Jane Richards In Person [2002] EWCA Civ 1402 11 Oct 2002 CA The Vice-Chancellor Lord Justice Potter Lord Justice Carnwath < Litigation Practice, Contempt of Court The defendant had been ordered to remove a fence she had placed on land in breach of a court order. She had served a term of imprisonment for contempt, as had her mother who had encouraged her in the flouting of the court order. She now sought to appeal against the order. Held: The underlying finding, that the land at issue was not hers was no longer itself in issue, and continued attempts by the respondent to re-open arguments long settled were pointless. The number of court orders, and defects in some of them had caused confusion, but there was no fundamental fault. Appeal refused. The court had a discretion to dispense with personal service of a document containing a penal notice, but in deciding whether to exercise that discretion, the court would need to be satisfied that the purposes of the requirements had been achieved. 1 Citers [ Bailii ] Â Saxena v Rushforth and Another [2002] EWCA Civ 1480 11 Oct 2002 CA Pill LJ Litigation Practice Application for extension of time and leave to appeal. [ Bailii ] Â Van Aken v Camden London Borough Council Times, 28 October 2002; Gazette, 31 October 2002 11 Oct 2002 CA Ward, Mummery, Parker LLJ Housing, Litigation Practice The appellant sought to appeal a review of his application for housing. The appeal was lodged at court after close of business on the last day of the statutory time limit. The court decided it was delivered out of time. Held: The Act required the appeal to be delivered. That denoted a unilateral act, not requiring any acknowledgement from the court. The case of Aadan was a transactional process, and therefore did not apply in this case. Housing Act 1996 204 1 Cites 1 Citers Â Govindasamy v British Gas Trading Ltd [2002] EWCA Civ 1532 14 Oct 2002 CA Dyson LJ Litigation Practice Application for leave to appeal - applicant not attending - rejection of claim of ill-health [ Bailii ] Â Great Peace Shipping Ltd v Tsavliris (International) Ltd Times, 17 October 2002; Gazette, 07 November 2002; [2002] EWCA Civ 1407; [2003] QB 679; [2002] 2 Lloyd's Rep 653; [2002] 4 All ER 689 14 Oct 2002 CA Lord Phillips MR, May, Laws LLJ Litigation Practice, Contract, Equity The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability. Held: Over the years there had been a conflict caused by Lord Denning's creation of an equitable doctrine of common mistake. That could no longer be allowed to continue, and no such doctrine could apply, and rescission was not available. There was no clear way of distinguishing mistakes which were fundamental to the contract. The fact that a bargain produced a worse position for one party was insufficient to found a rescission unless the mistake is such that it makes the contract adventure impossible. Two of the elements which must be present if common mistake is to avoid a contract are the non-existence of the state of affairs must render contractual performance impossible; and the state of affairs must be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible. Lord Phillips MR set out five condition which must be present if a contract was to be avoided as a mistake: "(i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible." 1 Cites 1 Citers [ Bailii ] Â Tanner v Blueprint Books Ltd and Another [2002] EWCA Civ 1429 16 Oct 2002 CA Torts - Other, Litigation Practice [ Bailii ] Â Pratley v Surrey County Council [2002] EWCA Civ 1552 16 Oct 2002 CA Litigation Practice Application for leave to appeal 1 Cites 1 Citers [ Bailii ] Â Pattison v Clarksons and Steele [2002] EWCA Civ 1551 16 Oct 2002 CA Mantell J Insolvency, Litigation Practice The claimant had instructed the defendant firm of solicitors to claim in copyright. They failed to notify the defendants in that action that he was legally aided. When the action was dismissed, the solicitors were ordered to pay costs. Subsequently the claimant had begun several actions against the defendants. Each had been lost, with orders for costs against him, totalling £28,000, and bankruptcy proceedings commenced. A further action was stayed pending payment. Held: The bankruptcy order made him incompetent to pursue these proceedings. There were no grounds to permit an appeal to go ahead. [ Bailii ] Â Pennington and Another v Waine and others [2002] EWCA Civ 1587 17 Oct 2002 CA Litigation Practice 1 Cites [ Bailii ] Â Mckay, Regina (on the Application of) v Derby County Court and others [2002] EWCA Civ 1555 18 Oct 2002 CA Pill LJ Litigation Practice Applications for permission to appeal. [ Bailii ] Â Biggin Hill Airport Ltd v London Borough of Bromley [2002] EWCA Civ 1752 18 Oct 2002 CA Litigation Practice Form of order to implement judgment. [ Bailii ] Â Gordon v Gordon and others [2002] EWCA Civ 1558 21 Oct 2002 CA Clarke LJ Litigation Practice Application for security for costs. [ Bailii ] Â Ashleigh-Nicholson v Staffordshire Police and Another [2002] EWCA Civ 1562 22 Oct 2002 CA Litigation Practice The court refused to set aside a refusal of leave to appeal made in the appellant's absence. [ Bailii ] Â Westminster City Council v Porter and Another [2002] EWCA Civ 1591 23 Oct 2002 CA Litigation Practice Application for enforcement of order reclaiming £33 million. [ Bailii ] Â In re T (A Child: contact) [2002] EWCA Civ 1736; [2003] 1 FLR 531; [2003] 1 FCR 303 24 Oct 2002 CA Thorpe, Rix, Arden LJJ Children, Litigation Practice The court considered an appeal in care proceedings, where it was felt that the judge's reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out counsel's duties on receiving what might be a deficient draft judgment: "In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3, which does not as such apply to these proceedings); and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result. I should make it clear that there are general observations for assistance in future cases, and that I make no criticisms of counsel in this case". 1 Cites 1 Citers [ Bailii ] Â Orford v Rasmi Electronics and Another [2002] EWCA Civ 1672; [2002] All ER (D) 397 (Oct) 25 Oct 2002 CA Brooke L, Bodey J Torts - Other, Defamation, Litigation Practice [ Bailii ] Â Manison v Attorney General and Another [2002] EWCA Civ 1727 31 Oct 2002 CA Litigation Practice [ Bailii ] Â Clieve-Roberts v Marryat (Richmond) Ltd [2002] EWCA Civ 1671 31 Oct 2002 CA Litigation Practice [ Bailii ] Â Coppard v Customs and Excise [2002] EWCA Civ 1697 5 Nov 2002 CA Litigation Practice Application for leave to appeal out of time - granted. 1 Citers [ Bailii ] Â Â Assicurazioni Generali Spa v Arab Insurance Group (BSC); CA 13-Nov-2002 - Times, 29 November 2002; Gazette, 23 January 2003; [2002] EWCA Civ 1642; [2003] 1 WLR 577; [2003] Lloyds Rep IR 131; [2003] 1 All ER (Comm) 140 Â London Borough of Newham v Mustapha [2002] EWCA Civ 1751 21 Nov 2002 CA Litigation Practice [ Bailii ] Â Dugmore v Swansea National Health Trust and Another [2002] EWCA Civ 1755 21 Nov 2002 CA Litigation Practice, Costs Costs on grant of leave to appeal to House of Lords. [ Bailii ] Â Watson v Perotti [2002] EWCA Civ 1768 22 Nov 2002 CA Litigation Practice The applicant had sought to enforce costs orders against the appellant. Held: The appellant had shown no basis for his appeal which was without merit and was dismissed. [ Bailii ] Â Bank of Credit and Commerce International Sa and Another v Zafar [2002] EWCA Civ 1896 22 Nov 2002 CA Litigation Practice [ Bailii ] Â Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) [2002] EWHC 2503 (Ch); [2003] 1 BCLC 290 25 Nov 2002 ChD Lawrence Collins J Insolvency, Litigation Practice Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of Justice (although not the subject of decision) in relation to insolvency proceedings brought directly by bondholders. 1 Citers [ Bailii ] Â Harris Rosenblatt and Kramer (A Firm) v Bourne [2002] EWCA Civ 1833 26 Nov 2002 CA Litigation Practice [ Bailii ] Â Charly Acquisitions Ltd and Another v Immediate Records Inc and Another [2002] EWCA Civ 1865 28 Nov 2002 CA Litigation Practice [ Bailii ] Â Knight v Sage Group Plc [2002] EWCA Civ 1862 28 Nov 2002 CA Litigation Practice [ Bailii ] Â Â Peakviewing (Interactive) Ltd and others v Secretary of State for Culture, Media and Sport; CA 28-Nov-2002 - [2002] EWCA Civ 1864 Â Â Sivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another; CA 28-Nov-2002 - Gazette, 23 January 2003; [2002] EWCA Civ 1738; [2003] 1 WLR 475; [2003] CP Rep 27; [2003] 2 All ER 160 Â Waldman v Mahajan [2002] EWCA Civ 1839 29 Nov 2002 CA Litigation Practice Refusal of party's request privately to record court hearings. 1 Cites 1 Citers [ Bailii ] Â Â Gwembe Valley Development Company Ltd v Koshy and others; CA 3-Dec-2002 - [2002] EWCA Civ 1805 Â Kastor Navigation Co Ltd and Another v AGF M A T and others ("Kastor Too") [2002] EWHC 2601 (Comm); [2003] 1 All ER (Comm) 277; [2003] 1 Lloyd's Rep 296 4 Dec 2002 ComC Tomlinson J Insurance, Litigation Practice The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore a constructive total loss ('CTL'). They said the cause of the loss was not the fire, and the loss was uninsured. Held: Abandonment of the subject-matter insured will take place by operation of law when the underwriters settle the claim. Section 61 is thus satisfied. The insured has been deprived of his right of choice envisaged by Section 61. He has no option but to treat the vessel as a total loss. Section 62(7) says in terms that notice of abandonment is unnecessary where when the insured receives information of the loss there would be no possibility of benefit to the insurer if notice were given to him. The Claimants were entitled to recover as for a CTL. Marine Insurance Act 1906 6162(7) 77(2) 1 Cites 1 Citers [ Bailii ] Â Beckingham v Hodgens [2002] EWCA Civ 1901 4 Dec 2002 CA Litigation Practice Renewed application for leave to appeal - refused - appeal against finding on facts. 1 Cites 1 Citers [ Bailii ] Â Thane Investments Ltd and Another v Tomlinson Times, 10 December 2002 6 Dec 2002 ChD Neuberger J Litigation Practice The claimants had obtained an ex parte freezing order. The respondent complained that they had failed to provide full notes of the hearing as required. Held: It was vital that those obtaining ex parte relief should comply with the requirements. A copy of the notes of the hearing had to be provided to the other party whether or not they requested them. In this case however the failure was not enough to justify the discharge of the order. 1 Cites 1 Citers Â Tracy and Another v Jones [2002] EWCA Civ 1903 10 Dec 2002 CA Litigation Practice [ Bailii ] Â Watson v Bluemoor Properties Ltd [2002] EWCA Civ 1875 10 Dec 2002 CA Potter LJ, Sullivan J Litigation Practice Application for leave to appeal. Held: An application to set aside made within six weeks of judgment was sufficiently prompt in a case which was 'by no means straightforward'. 1 Citers [ Bailii ] Â Chief Constable of Thames Valley Police v Earl Gideon Foster Hepburn [2002] EWCA Civ 1841; Times, 19 December 2002; [2002] All ER (D) 214 13 Dec 2002 CA Lord Justice Brooke, Lord Justice Sedley, Lord Justice Tuckey Police, Torts - Other, Litigation Practice The claimant sought damages from the police. They had executed a search warrant, and one officer detained the claimant during the raid. Held: A person who mistakenly restrained an individual in the mistaken belief that he had been lawfully arrested is liable for trespass to the person. The terms of the warrant had to be carefully applied. The warrant provided for a search of the premises, but included no power to detain a person found on the premises. A citizen's freedom of movement is inviolable save under express power: "honest belief in a non-existent state of affairs does not excuse a trespass to the person". An obstruction could give a power of arrest, but there was no implied power as suggested by the Chief Constable. Late amendments of the sort allowed here should be discouraged. Police and Criminal Evidence Act 1984 1 Citers [ Bailii ] Â Patel v Singh [2002] EWCA Civ 1938 13 Dec 2002 CA Peter Gibson LJ, Sir Anthony Evans Litigation Practice [ Bailii ] Â Bon Bleu Ltd v Perez and Another [2002] EWCA Civ 1912 16 Dec 2002 CA Litigation Practice Leave to appeal refused - on facts [ Bailii ] Â Medina Housing Association v Case [2002] EWCA Civ 2001; [2003] HLR 37 16 Dec 2002 CA Kaly LJ Housing, Litigation Practice The claimant had obtained an order for possession against the defendant for her repeated anti-social behaviour. The court granted in addition to the possession order an injunction restraining the defendant from coming near the premises for a further five years. Held: The jurisdiction to make such an injunction lasted only as long as did the contract underlying it. Once possession was taken, the contract came to an end, and so did the jurisdiction for an injunction. The order had been wrongly made and was discharged. Kaly LJ: "Parliament has itself recognised the problems that this situation can cause and has made provision in some circumstances to deal with the problems that arise. Section 152(1) of the Housing Act 1996 permits the grant of an injunction to prohibit antisocial behaviour but only to a local authority, and such an application therefore could not be made by the respondent. Parliament has not seen fit to give any wider statutory power than that which is contained in section 152(1), which would enable the housing authority to take action in circumstances such as this. That is why they have had to seek to rely on the common law and simply to seek an injunction as part of their contractual rights. Those rights extend up to the termination of the contract but no further than that." Housing Act 1996 152(1) 1 Citers [ Bailii ] Â Ratra v Lord Chancellor's Department [2002] EWCA Civ 1904 16 Dec 2002 CA Litigation Practice [ Bailii ] Â Â Mitchell and Holloway v The United Kingdom; ECHR 17-Dec-2002 - Times, 28 December 2002; 44808/98; [2002] ECHR 812; [2002] ECHR 818 Â Â Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1); CA 19-Dec-2002 - Times, 28 December 2002; [2002] EWCA Civ 1889; [2003] 1 WLR 1511; (2003) 73 BMLR 1; [2003] Lloyds Rep Med 244; [2003] PIQR P20; [2003] WTLR 259; [2003] CP Rep 29; [2003] 3 All ER 162; (2004) 7 CCL Rep 5 Â Prudential Assurance Co Ltd v Prudential Insurance Co of America Times, 02 January 2003; [2002] EWHC 2809 20 Dec 2002 ChD Sir Andrew Morritt VC Human Rights, Litigation Practice, Evidence The parties had undertaken negotiations on a 'without prejudice' basis. One now sought freedom to rely upon the other's statements. Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of others. The protection from repetition before a court of admissions made 'without prejudice' should be limited to those occasions where the public interests underlying the rule were plainly applicable. The "without prejudice" rule must be applied carefully and only in cases to which the public interest which underlies the rule requires it to be applied: "Article 10 [ECHR, s.12(1) of the Human Rights Act 1998] confers on everyone the right of freedom to expression, including the right 'to receive and impart information and ideas without interference by public authority and regardless of frontiers'. But that right is subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the rights of others. Prima facie, therefore, the right is engaged by the 'without prejudice' rule but justified by the public interests which underlie it. But what this part of the case does is emphasise the need to apply the 'without prejudice' rule with restraint and only in cases to which the public interests underlying the rule are plainly applicable." European Convention on Human Rights 10 1 Citers [ Bailii ] Â In re Deep Vein Thrombosis and Air Travel Group Litigation Times, 17 January 2003; [2002] EWHC 2825 (QB) 20 Dec 2002 QBD Nelson J Personal Injury, Transport, European, Human Rights, Litigation Practice The claimants claimed to have suffered deep vein thrombosis having been sat in cramped conditions for long periods whilst travelling by air. They sought compensation, saying that the failure by the airlines to warn them and take steps to minimise the dangers was culpable. Under the Convention they had to establish that the injuries constituted accidents. Held: The injuries were not accidents. The test was set out in Morris, namely 'a simple criterion of causation by an accident'. An accident is 'an unexpected or unusual event or happening that is external to the passenger' (Saks). There was nothing in the respective flights which satisfied these tests. Article 17 was not fault based, nor was any theory of risk allocation to be applied, and the Convention was the exclusive remedy. Neither Human Rights law nor European regulations provided alternative remedies. Warsaw Convention on International Carriage by Air 1929 17 - Carriage by Air Act 1961 - EC Regulation 2027/97/EC on air carrier liability in the event of accidents - European Convention on Human Rights 6 8 1 Cites 1 Citers [ Bailii ] Â Â Royal and Sun Alliance Insurance Plc and Another v T and N Ltd; CA 30-Dec-2002 - [2002] EWCA Civ 1964 Â
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