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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Litigation Practice - From: 2003 To: 2003

This page lists 133 cases, and was prepared on 02 April 2018.

 
Hackney v Driscoll (No 1) [2003] EWCA Civ 614
2003
CA

Litigation Practice
It was not clear whether an order made by a circuit judge was made by a judge of the county court at first instance, or by a circuit judge in an appeal court. The route for an appeal was therefore unclear.
1 Citers


 
Al-Misnad v Azzaman [2003] EWHC 1783
2003

Gray J
Litigation Practice
Evidence of international law
1 Citers


 
Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites [2003] EWHC 1738 (Ch)
2003
ChD
Sir Andrew Morritt V-C
Land, Litigation Practice
The court granted an interlocutory injunction to restrain unknown trespassers from entering land.
1 Citers


 
In re Trusts of X Charity [2003] 1 WLR 2751; [2003] EWHC 257 (Ch)
2003
ChD
Sir Andrew Morritt, Vice Chancellor
Litigation Practice, Human Rights
If a hearing is heard in private, then it is open to the court to rule that its judgment should be maintained in private. Sir Andrew Morritt said: "This, essentially administrative, jurisdiction is designed to provide guidance to the fiduciary as to the proper exercise of his powers in the problematic circumstances with which he is faced. Only rarely could it be said to determine the rights of anyone."
European Convention on Human Rights 6
1 Citers


 
J v V (Disclosure: Offshore Corporations) [2004] 1 FLR 1042; [2003] EWHC 3110 (Fam)
2003
FD
Coleridge J
Family, Litigation Practice
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considerd the use of documents recovered by a party by unauthorised or improper means. He said: "The use of Hildebrand documents in English ancillary relief proceedings is perfectly permissible subject to certain conditions as to early revelation to the party who owns the documents. When that general point is added to the fact that, absent these documents, the picture of the husband's finances would be even more incomplete in a number of crucial respects than it is anyway, I find [the wife's] conduct entirely understandable, justified and above criticism. I should not have hesitated to criticise her and her lawyers if I had felt they had over-stepped the mark."
As to costs, Coleridge J said: "If clients 'duck and weave' over months or years to avoid coming clean they cannot expect much sympathy when it comes to the question of paying the costs of the enquiry which inevitably follows. And that is so whatever the outcome eventually is and whatever offers have been made before final determination. Applicants cannot be properly and fully advised about the merits of offers by their lawyers unless the disclosure is full . . and frank; all the cards must be put on the table face up at the earliest stage if huge costs bills are to be avoided."
Coleridge also commented on the readiness of the courts to deal with overcomplicated financial structures: "these sophisticated offshore structures are very familiar nowadays to the judiciary who have to try them. They neither impress, intimidate, nor fool any one. The courts have lived with them for years."
1 Cites

1 Citers


 
Network Telecom (Europe) Ltd v Telephone Systems International Inc [2003] EWHC 2890 (QB)
2003
QBD
Burton J
Jurisdiction, Litigation Practice
Burton J said: "Inasmuch as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and the failure to make such full and fair disclosure shall justify the court in discharging the order, even though the party might afterwards be in a position to make another application." It made no difference that the Master took the view that he had not been materially misled.
1 Citers


 
Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14
2003
CA
Clarke LJ, Scott Baker LJ
Estoppel, Contract, Litigation Practice
The court discussed the significance of Johnson v Gore Wood. Clarke LJ: "The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 2 AC 1, can be summarised as follows:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C."
1 Citers

[ Bailii ]
 
Carlton Film Distributors Ltd v VCI Plc [2003] FSR 47
2003


Litigation Practice

1 Cites

1 Citers


 
Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693
2003

Evans JA
Litigation Practice, Commonwealth, Constitutional
(Canada - Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: "the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."
1 Citers


 
Caricom Cinemas Ltd and others v Republic Bank Limited [2003] UKPC 2
15 Jan 2003
PC

Commonwealth, Litigation Practice
(Trinidad and Tobago)
[ Bailii ] - [ PC ]
 
Virdee v Virdi [2003] EWCA Civ 41
15 Jan 2003
CA

Litigation Practice

[ Bailii ]
 
Yorke v Katra [2003] EWCA Civ 42
16 Jan 2003
CA

Construction, Litigation Practice

[ Bailii ]

 
 Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey; ChD 27-Jan-2003 - Times, 31 January 2003; [2003] EWHC 55 (Ch); Gazette, 20 March 2003; [2003] 1 All ER 1087; [2003] EMLR 29
 
Sony Music Entertainment (Uk) Limited, Sony Music Entertainment Inc , Polydor Limited, Umg Recordings Inc , Virgin Records Limited v Easyinternetcafe Limited Times, 06 February 2003
28 Jan 2003
ChD
The Honourable Mr Justice Peter Smith
Intellectual Property, Litigation Practice
The claimant sought damages from the defendants who ran an internet cafe where its visitors downloaded files from the Internet and then copied the files onto CDs, so infringing copyrights owned by the claimants. Held: The defendants were not paid directly for the copying, but it was part of the charge for the service. Whatever defence might have been available to the private customers under section 70, the intervention for profit by the defendant defeated that defence. Liability for infringement was strict. On a Part 24 hearing, the court should not be told of the existence of a Part 36 offer.
Copyright Designs and Patents Act 1988 17(1) 18(1) 70

 
Wilkinson v S and Lord Chancellor's Department Times, 07 February 2003; [2003] EWCA Civ 95; [2003] 1 WLR 1254
4 Feb 2003
CA
Woolf LCJ, Hale, Latham LJJ
Contempt of Court, Human Rights, Litigation Practice
The appellant challenged his imprisonment for contempt of court. At and after a family court hearing he had verbally and physically assaulted other parties. He had been detained overnight, then sentenced to six months imprisonment. Held: Where a court looked to deal summarily with a contempt, and the defendant had been locked up, but the case could not be dealt with on that day, the case should be mentioned again to allow consideration of bail. The court had a power hold a defendant overnight, but for no longer than was necessary to arrange a summary trial, and in fairness to th defendant. Here, the summary procedure was appropriate because of the seriousness of the contempt. The judge could deal with the case himself and remain an impartial tribunal, since the procedure was to protect the court not the judge. Where there was any delay, reference to another judge should be considered. A suspended committal order was a committal order at least to the extent that leave to appeal is not required.
1 Cites

1 Citers

[ Bailii ]
 
Re A [2003] EWCA Civ 210
4 Feb 2003
CA
Hale LJ
Children, Litigation Practice
The court considered whether publicity should be allowed in a children's application: "On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication of material about them. If this comes to the notice of their school friends or others, then they may be the subject of jokes, teasing, bullying, and worse. Children, particularly of primary school age, are greatly susceptible to embarrassments of this sort. The other way in which it can be harmful to children is if it serves to undermine the confidence and the ability to cope of the person who is looking after the child."
1 Citers


 
Jones v University of Warwick Times, 07 February 2003; [2003] EWCA Civ 151; Gazette, 20 March 2003; [2003] 1 WLR 954
4 Feb 2003
CA
Woolf LCJ, Hale, Latham LJJ
Litigation Practice, Evidence, Civil Procedure Rules, Human Rights
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully. Held: The situation asked judges to reconcile the irreconcilable. Courts should be reluctant to create rules which would deny the admission of genuine evidence. Where a party behaved in a reprehensible manner, the court should look to other methods of marking the unlawful behaviour, including costs awards, but the court was required to get to the truth. A party’s behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded. Any infringement under article 8.1 was justified under article 8.2.
Civil Procedure Rules 32.1(2) - European Convention on Human Rights 8.1 8.2
1 Cites

1 Citers

[ Bailii ]
 
Credit Agricole Indosuez v Unicof Ltd and others [2003] EWHC 77 (Comm)
4 Feb 2003
ComC

Litigation Practice, Civil Procedure Rules
One of the defendants applied to have judgement set aside. He had been served out of the jurisdiction, and complained that the evidence upon which leave to serve out of the jurisdicion had been applied for was false. Held: Even though the prospects of a successful defence may be low, the court had, maybe unintentionally, been misled and this was an occasion on which it would be proper to set aside a judgement in default.
Civil Procedure Rules 6.24(1)(a)
[ Bailii ]
 
Three Rivers Council and others v Bank of England [2003] EWHC 145 (Comm)
6 Feb 2003
ComC

Legal Professions, Litigation Practice

[ Bailii ]
 
Marlton v Tectronix UK Holdings [2003] EWHC 383 (Ch)
10 Feb 2003
ChD
Pumfrey J
Litigation Practice, Contract
The court considered what was to be discovered under Part 31.4.1 of CPR. Pumfrey J expressly approved the commentary in the White Book: "A computer database which forms part of the business records for company is, in so far as it contains information capable of being received and converted into readable form, a document for the purposes of CPR 31.4 and is therefore susceptible to disclosure."
Civil Procedure Rules 31.4.1
1 Citers

[ Bailii ]
 
Robert v Momentum Services Ltd Times, 13 February 2003; Gazette, 10 April 2003; [2003] EWCA Civ 299; [2003] 1 WLR 1577
11 Feb 2003
CA
Sir Andrew Morritt VC, Hale, Dyson
Litigation Practice
The claimant appealed against an order refusing an extension of time for service of her particulars of claim. She had made the application before the period expired. Held: The rules made a clear distinction between applications made before time expired and those made afterwards. For the latter the rules laid down a checklist. It was not appropriate to look to the same list when considering timeous applications, because a difference in principle applied. The court should look at the prejudice to the defendant which arose from the particular delay contemplated, and not at any pre-existing prejudice. An in-time application for an extension of time (in this case for service of the particulars of claim) was not, and should not be treated as, an application for relief from sanctions.
Dyson LJ (with whom all members of the court agreed) held that when the application to the court for an extension of time was made before the expiry of the time there was no reason to import the Part 3.9(1) checklist, but that the discretion of the court: ""It is clear that Brooke LJ treated Sayers as a relief from sanctions case, or at least closely analogous to such a case. That is because the time for appealing had already expired when the application for an extension of time was made. I see no reason to import the rule 3.9(1) check lists by implication into rule 3.1(2)(a) where an application for an extension of time is made before the expiry of the relevant time limit. There is a difference in principle between on the one hand seeking relief from a sanction imposed for failure to comply with a rule, practice direction or court order, where such failure has already occurred, and on the other hand seeking an extension of time for doing something required by a rule, practice direction or court order before the time for doing it has arrived. The latter cannot sensibly be regarded as, or even closely analogous to, a relief from sanctions case. If the draftsman of the rule had intended that the check list set out in rule 3.9(1) should be applied when the court is exercising its discretion under CPR 3.1(2)(a) in such a case, then he could and, in my judgment, would have said so. By not spelling out a check list in rule 3.1(2)(a), it seems to me that the draftsman was intending that the discretion should be exercised by simply having regard to the overriding objective of enabling the court to deal with cases justly including, so far as practicable, the matters set out in rule 1.1(2)."
Civil Procedure Rules 3.1(2)(a) 3.9(1)
1 Cites

1 Citers

[ Bailii ]
 
Parker v C S Structured Credit Fund Ltd and another Times, 10 March 2003; Gazette, 17 April 2003
12 Feb 2003
ChD
Gabriel Moss QC
Litigation Practice, Civil Procedure Rules
The claimant alleged a breach of a share sale agreement, and sought information in advance of discovery. Held: The court's power to order information to be provided in anticipation of discovery was not to be used as a fishing expedition. The Gidrxsime case did not establish a free standing right to order disclosure. There must be shown a solid base for the court to exercise its powers. The bringing forward of general discovery would disturb the operation of the Rules.
Civil Procedure Rules 25.1(1)(g)
1 Cites


 
Governor and Company of the Bank of Scotland v Henry Butcher and Co and others Times, 20 February 2003; [2003] EWCA Civ 67; Gazette, 03 April 2003
13 Feb 2003
CA
Lord Justice Aldous, Lord Justice Chadwick, Mr Justice Munby
Litigation Practice
The court fiercely criticised the failure of the defendant's solicitors to follow the practice directions and to use references to the Weekly Law Reports wherever possible as citations. The court had been badly hampered in its hearing by that and other failures.
1 Cites

[ Bailii ]
 
Attorney General v Badibanga [2003] EWHC 394 (Admin)
17 Feb 2003
Admn

Litigation Practice
Vexatious litigant
Supreme Court Act 1981 42
[ Bailii ]
 
Morrison v Chief Constable of the West Midlands Police [2003] EWCA Civ 271
17 Feb 2003
CA
The Master Of The Rolls (Lord Phillips) Lord Justice Brooke Lord Justice Laws
Litigation Practice
The claimant sought damages from the police for the manner of her arrest. At the civil trial, the jury had been undecided, and the court directed the jury as to resolution. The respondents appealed saying that the judge had put too much pressure on the jury. Held: The learned judge should have given a Watson direction and he did not do so. The suggestion of retiring again came from the jury itself, and without pressure from the judge. The decision stood.
Juries Act 1974 17(4)
1 Cites

[ Bailii ]

 
 Gregory and Gregory v Turner, Turner; Regina (Morris) v North Somerset Council; CA 19-Feb-2003 - Times, 21 February 2003; [2003] EWCA Civ 183; [2003] 1 WLR 1149
 
Railtrack Plc (In Railway Administration) v Guinness Limited Times, 03 March 2003; [2003] EWCA Civ 188; [2003] RVR 280
20 Feb 2003
CA
Lord Justice Aldous Lord Justice Carnwath Sir Denis Henry
Land, Litigation Practice
The case involved an appeal from the Land's Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a "a company regulated and subsidised by central government and subject to the political pressures as were the Claimants themselves". The Act said 'if sold in the open market by a willing seller' Held: Legislation had limited the amount of compensation to be paid where there was any urgency by deeming the seller to be willing. If it is intended to rely on a complex valuation exercise, based on a computer model, a common model should be agreed. There did appear to be a possibility of double counting on some element of the claim, and limited leave was given. The parties should work together to simplify the figures, issues and presentation for the court.

When dealing with appeals from a specialist tribunal, "issues of law in this context are not narrowly understood." "The court can correct 'all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings' (R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, 862 per Lord Templeman; see also de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995), p 686, para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached 'upon an incorrect basis of fact', due to misunderstanding or ignorance (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 321, para 53, per Lord Slynn of Hadley). A failure of reasoning may not in itself establish an error of law, but it may "indicate that the tribunal had never properly considered the matter … and that the proper thought processes have not been gone through' (Crake v Supplementary Benefits Commission [1982] 1 All ER 492, 508)."
Land Compensation Act 1961 5
1 Cites

1 Citers

[ Bailii ]
 
Abbey National Bank plc v Matthews and Son (a Firm), David Gouldman and Co (a firm) Times, 31 March 2003; Gazette, 10 April 2003
21 Feb 2003
ChD
Simon Berry QC
Litigation Practice
The claimant made claims against two defendants. It had compromised the claim against one defendant, taking an assignment of that party's claim against the remaining defendant and continued against that second defendant. Held: It could not be said that no liability remained (Lister), and the settlement was bona fide, though it had avoided a limitation bar by taking the assignment. However the court remained under a duty to consider the position under the Act. That would require an independent assessment of the liability of the party now discharged, and that had been made impossible by the settlement. The court could not comply wth its duty, and the claim was dismissed.
Civil Liability (Contribution) Act 1978 2(1)
1 Cites


 
Nawaz and Another v Crowe Insurance Group Times, 11 March 2003; [2003] EWCA Civ 316
24 Feb 2003
CA
Woolf LCJ, Kennedy, Scott Baker LJJ
Insurance, Road Traffic, Litigation Practice
The claimant had claimed aganst the driver, but gave notice of the intention to make a claim on his insurance by telephone only. The insurers repudiated liability. Held: Whilst solicitors would be strongly advised to give such notice in writing, an oral notice given to a proper officer of the insurer could be sufficient. In this case oral notice to a legal secretary was sufficient.
Road Traffic Act 1988 152
1 Cites

[ Bailii ]
 
Armchair Passenger Transport Ltd v Helical Bar Plc and Another [2003] EWHC 367 (QB)
28 Feb 2003
QBD
Nelson J
Litigation Practice
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant. Held. The court set out criteria for testing the independence of a proposed expert witness: "i) It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.
ii) The existence of such an interest, whether as an employee of one of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.
iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to give evidence.
v) The questions which have to be determined are whether (i) the person has relevant expertise and (ii) he or she is aware of their primary duty to the Court if they give expert evidence, and willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.
vi) The Judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.
vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.
1 Cites

[ Bailii ]
 
Douglas and Others v Hello Ltd and others [2003] EWCA Civ 332
3 Mar 2003
CA
The Lord Woolf Of Barnes, Lord Justice Kennedy And Lord Justice Scott Baker
Litigation Practice, Civil Procedure Rules
Statements had been obtained from a witness by the claimants, but not included amongst the evidence. At a point during the trial, a defendant asked for and was given leave to include the evidence. He now appealed leave given to the claimant to cross examine the witness having taken the statement themselves. Held: One purpose of the new rules was to remove excess technicality. The judge could be relied upon to ensure that any further difficulties which migt arise as a result of allowing cross examination, could be dealt with.
Civil Procedure Rules 32
[ Bailii ]
 
Leicester Circuits Ltd v Coates Brothers Plc [2003] EWCA Civ 333
5 Mar 2003
CA

Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
Practice Note (Court of Appeal (Civil Division): Listing windows and hear-by dates) Times, 14 March 2003
10 Mar 2003
CA
Phillips of Worth Matravers MR
Litigation Practice
The court announced that hear-by dates had been considerably reduced, and the longest now was 10 months. For appeals filed after 1 March 2003, the longest would now be 9 months, with many shorter.

 
Hatton v Messrs Chafes (A Firm) [2003] EWCA Civ 341; [2003] PNLR 24; [2007] Lloyd's Rep PN 15
13 Mar 2003
CA
Lord Justice Peter Gibson Lord Justice Clarke Sir Anthony Evans
Professional Negligence, Litigation Practice, Limitation
The defendant firm appealed against a refusal to strike out the claimant's claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey. Held: By the time that the negligence arose, the first claim was worthless. The claimant knew of the negligence of his solicitors at that time, both as to the existence of any damage, and of the possibility of a claim. The court summarised the principles as follows: "(i) A cause of action in negligence does not arise until the claimant suffers damage as a result of the defendant's negligent act or omission. (ii) The damage must be 'real' as distinct from minimal: Cartledge v Jopling [1963] AC 758 per Lord Reid . . and Lord Evershed MR . . (iii) Actual damage is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency: Forsted v Outred [1982] 1 WLR 86 per Stephenson LJ at 94, approved by the House of Lords in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd No 2 [1995] 1 WLR 1627, per Lord Nicholls (with whom the other members of the appellate committee agreed) . . (iv) The loss must be relevant in the sense that it falls within the measure of damages applicable to the wrong in question: Nykredit at 1630F. (Propositions (i) to (iv) were confirmed by Sir Murray Stuart-Smith in Khan v Falvey [2002] EWCA Civ 400, [2002] PNLR 28, at paragraphs 11 and 12.)
(v) A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period if he has suffered damage from the same wrongful act outside that period: Khan v Falvey . . following Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172 per Hobhouse LJ . ." The claim now was time barred. Appeal allowed.
Clarke LJ said: "Khan v Falvey is authority for the proposition that it is not a condition precedent for any claim against defendant solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out. The question remains by what criteria to judge when that moment arises. Although that question was discussed in the judgments in Khan v Falvey, as I read them it was not necessary to decide it for the purposes of the decision in that case. Nor is it to my mind necessary for it to be determined for the purposes of the decision in this appeal.
It seems to me that there are three possibilities as to when damage is caused by negligence in such a case so that the claimant's cause of action has accrued and time begins to run against him. The first is when the claimant has no arguable basis for avoiding the claim being struck out, the second is when it is more probable than not that the claim will be struck out and the third is when there is a real (as opposed to a minimal or fanciful) risk of the claim being struck out. The reason why it is not necessary to determine which of those possibilities is correct here is that, in my opinion, this is an example of the first class of case on the facts.
As I read it, Khan v Falvey was also an example of such a case. This can be seen with particular clarity in the judgment of Schiemann LJ. He noted in paragraphs 65 and 66 that in both Case 1 and Case 3 (which were the first two of the cases being considered) the claimant had pleaded that by a certain date his claim (or in one case counterclaim) was 'amenable to be struck out for want of prosecution'."
Sir Anthony Evans agreed that at the relevant time, the action was already doomed to fail, and added: "This is clear, in my judgment, because any attempt to proceed with the action against the accountants in October 1994 would have been met with an application to dismiss the claim for want of prosecution, and the application would certainly have succeeded. The action was, on any view, 'amenable to striking out.' The fact that the striking out order was not made until June 1999, after an even more belated attempt to revive the proceedings in January 1999, does not alter the circumstances as they were in 1994.
It is unnecessary, therefore, in the present case to define the precise nature of the evidential burden which rests upon the claimant in cases of this sort. Nevertheless, an issue does arise, which was argued before us. Is it sufficient to prove that there was some chance - a 'real' or 'substantial' chance - that the claim would have been struck out at the relevant date, if an application had been made? Or must the claimant prove something more - perhaps, that an application would probably have succeeded, if one had been made?
The former view receives some support from statements which are found in the authorities to the effect that the relevant kind of loss is the diminished value of the claim. Some diminution occurs when a striking out application would have some prospect of success, though falling short of 50 per cent. Yet in such a case it could not be said that the application would probably succeed or that the claim was probably worthless."
1 Cites

1 Citers

[ Bailii ]
 
Andy Coltrane v Janice Day Times, 15 April 2003; [2003] EWCA Civ 342; Gazette, 15 May 2003; [2003] 1 WLR 1379
14 Mar 2003
CA
Lord Justice Potter Lord Justice Tuckey Mr Justice Wall
Housing, Landlord and Tenant, Litigation Practice
In the course of possession proceedings for non payment of rent under an assured tenancy, the tenant gave the landlord a cheque which cleared the arrears. Held: The past course of dealings between the parties showed that the landlord had previously accepted cheques, and now required the landlord to accept payment by cheque. Payment by means of a cheque was made on the day the cheque was presented, but conditional until honoured. There was no reason to treat possession proceedings under the 1988 Act differently. The district judge had a discretion to adjourn which he should have exercised. Appeal allowed.
Housing Act 1988 9(1) Schedule 2 Part 1
1 Cites

1 Citers

[ Bailii ]
 
Gahie v Immigration Appeal Tribunal Times, 20 March 2003
19 Mar 2003
CA
Auld LJ
Litigation Practice
It was not acceptable for counsel to abandon, only on the date of a case coming before the court, a point of which had been superceded by other cases in the interim. This resulted in the waste of preparation time.

 
Phillips v Commissioner of Police of the Metropolis Times, 02 April 2003; [2003] EWCA Civ 382; Gazette, 29 May 2003
20 Mar 2003
CA
Phillips MR, Rix LJ, Scott Baker LJ
Litigation Practice, Civil Procedure Rules
In a claim aganst the police, it had become apparent that some parts of the trial would require the examination of detailed documents. The defendant appealed a refusal of its request for the matter to be heard without a jury. Held: The Act and the Rules explicitly acknowledged the possibility of splitting a trial between jury and non-jury elements, but the judge had erred in his assessment by failing to recognise the different context of a civil as opposed to a criminal trial. In many cases, once it became clear that some issue would require judge alone trial, the rest of the trial should follow, for example issues of credibility of the same witness fell within both sections. A court should ask, would there be a prolonged examination of documents, could that be made by a jury, and if not should the court nevertheless use its discretion to order jury trial. The court should have ordered trial by judge alone.
Supreme Court Act 1981 69 - Civil Procedure Rules
[ Bailii ]
 
Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) [2003] EWCA Civ 474; Times, 19 April 2003; Gazette, 12 June 2003; [2003] 3 WLR 667; [2003] QB 1556; [2003] CPLR 349; [2003] All ER (D) 59
3 Apr 2003
CA
Lord Justice Sedley The Master Of The Rolls Lord Justice Longmore
Legal Professions, Litigation Practice
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI. Held: Legal advice privilege attached to the communications between a client and the solicitor where proceedings were not contemplated, but did not attach to supporting documents. Privilege stemmed from the confidential relationship of client and solicitor and attached only to communications between the client and solicitor. The shift in focus from the dominant purpose of the document to the dominent purpose of the retainer was doubted. Documents prepared for the enquiry rather than as part seeking legal advice were not privileged.
1 Cites

1 Citers

[ Bailii ]
 
Coppard v The Commissioners of Customs and Excise, Lord Chancellor intervening [2003] EWCA Civ 631; Times, 11 April 2003; Gazette, 19 June 2003; [2003] EWCA Civ 511; [2003] QB 1428; [2003] 3 All ER 351; [2003] 2 WLR 1618
9 Apr 2003
CA

Litigation Practice, Human Rights, Constitutional
The judge, a circuit judge who had been appointed a judge of the TCC, had adjudicated on the claimant's case in the High Court in the false belief that the appointment allowed him to do so. Held: The judge had not wilfully closed his eyes to the law, and his mistake was understandable. On established principle, the judge was a judge de facto. The true logic of the doctrine was not only that the acts were validated but also the office. Accordingly, the judge was a properly constituted court for Article 6 purposes.
Supreme Court Act 1981 68 - European Court of Human Rights 6(1)
1 Cites

[ Bailii ] - [ Bailii ]
 
Hoechst United Kingdom Ltd v Inland Revenue [2003] EWHC 1002 (Ch); [2008] BTC 659; [2003] STI 884; [2004] STC 1486
11 Apr 2003
ChD
Park J
Corporation Tax, Litigation Practice
If an amendment to a pleading proposes a new claim which does not arise out of the same or substantially the same facts, the court has no discretion and may not allow the amendment.
1 Citers

[ Bailii ]

 
 Vincent v M J Gallagher Contractors Ltd; CA 15-Apr-2003 - [2003] EWCA Civ 640; Times, 23 May 2003; [2003] ICR 1244
 
Irwin Mitchell Solicitors v Patel [2003] EWCA Civ 633
15 Apr 2003
CA

Litigation Practice

[ Bailii ]
 
Bournemouth and Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc [2003] EWHC 834 (Ch)
16 Apr 2003
ChD
The Honourable Mr Justice Peter Smith
Banking, Professional Negligence, Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
Society of Lloyd's v Laws and others [2003] EWHC 873 (Comm)
24 Apr 2003
ComC
Cooke J
Insurance, Litigation Practice

1 Citers

[ Bailii ]
 
Hollywood Realisations Trust Ltd v Lexington Insurance Company and others [2003] EWHC 996 (Comm)
2 May 2003
ComC

Litigation Practice

[ Bailii ]

 
 Frankson and Others v Secretary of State for the Home Department; Johns v Same; CA 8-May-2003 - Times, 12 May 2003; [2003] 1 WLR 1952; [2003] EWCA Civ 655

 
 Chan U Seek v Alvis Vehicles Ltd; ChD 8-May-2003 - Times, 16 May 2003

 
 T and N Limited, Associated Companies of T&N Ltd (In Administration) v Royal and Sun Alliance Plc, and others; ChD 9-May-2003 - [2003] EWHC 1016 (Ch)
 
A B and others v Leeds Teaching Hospitals NHS Trust [2003] EWHC 1034 (QB); Gazette, 22 April 2004
9 May 2003
QBD
Gage J
Litigation Practice, Health Professions, Costs
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed. Held: In GLO cases the desirability of ensuring that costs are kept within bounds makes it unnecessary for the court to require exceptional circumstances before exercising its discretion to make a costs cap order. Any costs cap should only relate to the costs incurred in relation to generic issues. An order was made identifying limits to the separate areas. The court's general powers of case management were sufficiently wide to encompass the making of a costs capping order both in group litigation and in other actions.
Supreme Court Act 1981 51
1 Cites

1 Citers

[ Bailii ]
 
Merer v Fisher and Another [2003] EWCA Civ 747
13 May 2003
CA
Lord Justice Potter, Lord Justice Mummery And Lady Justice Arden
Land, Contract, Litigation Practice
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered right of pre-emption was, under the Act, only void as against a purchaser for value. The defendant sought to challenge the finding as to consideration. Held: The question on appeal is whether the evidence on which the judge did not make findings, expressly or by implication, demonstrates that the judge's conclusion on the question as to the existence of the arrangement was plainly wrong. That was not established, and that part of the judgement stood. The claimant sought specific performance, the judge had refused it, but Sudbrook was to be distinguished and an order for specific performance granted.
Land Charges Act 1925 4(6)
1 Cites

[ Bailii ]

 
 Bhamjee v Forsdick and others; CA 14-May-2003 - [2003] EWCA Civ 799
 
Parnall v Hurst and others Times, 10 July 2003; Gazette, 10 July 2003
15 May 2003
ChD
Peter Langan QC
Litigation Practice
The court refused an appeal by the defendants from an order refusing to strike out the claim. Held: Where the court could deal with a matter justly without striking a case out, by possibly imposing a sanction as to costs, it should do so. Here the claimant sought to rely upon a late affidavit. She should be allowed to do so on condition that she be responsible for the costs to date in any event, rather than have her claim struck out.
1 Cites


 
The Arena Corporation Ltd v Schroeder [2003] EWHC 1089 (Ch)
15 May 2003
ChD
Alan Boyle QC J
Litigation Practice
Application for continuation of freezing orders made without notice.
[ Bailii ]
 
Fowler De Pledge (A Firm) v Smith [2003] EWCA Civ 703; Times, 27 May 2003; Gazette, 31 July 2003
20 May 2003
CA
Lord Justice Schiemann, Lord Justice Brooke and Lord Justice Jonathan Parker
Litigation Practice, Legal Aid
The appellant sought two permissions to appeal. Having at one stage been legally aided in proceedings, a claim for his solicitors costs had been compromised. The court records were imperfect. It was not clear whether a circuit judge sitting as a first appeal court had directed that a matter should be heard by another circuit judge as an appeal by way of rehearing, or as a rehearing of the original application. Held: Courts must be careful to be clear as to just what was being ordered. There was no evidence to justify a finding that Mr Smith had sufficient means to pay the full amount of the costs order against him, whether by consent or not.
Legal Aid Act 1988 17
1 Cites

1 Citers

[ Bailii ]
 
Liubov Ford v Richard Labrador [2003] UKPC 41; Times, 05 June 2003; Gazette, 10 July 2003; [2003] 1 WLR 2082
22 May 2003
PC
Lord Hope of Craighead, Lord Rodger of Earlsferry, Sir Philip Otton
Commonwealth, Litigation Practice, Human Rights, Costs, Natural Justice
(Gibraltar) The appellant had failed in an action for defamation, she had been ordered to pay costs as a condition of her continuing the action. Held: The order was made by the Chief Justice sitting as a judge of the Court of Appeal in an appeal which had been taken against a decision which he himself had made when sitting in the Supreme Court at first instance. That was insupportable. She had not been informed of the hearing of the taxation of the costs she was now asked to pay. Those costs were disproportionate to the matter before the court. The European Convention has not been incorporated into the domestic law of Gibraltar and the decisions of the European Court are not strictly binding on the courts of Gibraltar, but they are rightly treated, where pertinent, as persuasive.
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Luis Vicente Barros Mattos Juniorand others v Macdaniels Limitedand others [2003] EWHC 1173 (Ch)
22 May 2003
ChD
The Vice-Chancellor
Litigation Practice

[ Bailii ]
 
Her Majesty's Attorney General v Ratra [2003] EWHC 1291 (Admin)
23 May 2003
Admn

Litigation Practice

Supreme Court Act 1981 42
[ Bailii ]
 
Miller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others Times, 06 June 2003; Gazette, 14 August 2003; [2004] FSR 5
23 May 2003
ChD
Neuberger J
Litigation Practice, Intellectual Property
The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such injunctions created commercial risks for third parties, and it seemed reasonable to require undertakings form the applicant for such an injunction. However a freezing order is of a special type, the existence of which could be doubted. A non-proprietary freezing order did not relate to assest in which the applicant held any interest, but rather created a right. Nevertheless a wide injunction could be a request for a claimant to issue blank cheques to unkown and uncounted third parties. A third party who was adversely affected could himself make application to the court, and a wide undertaking was not required. A cross-undertaking had not been given for the benefit of third parties; but the company argued that, by analogy with the standard practice in freezing order cases, it should have been.
Neuberger J said: "None the less, while this court should not be over-indulgent to a person seeking an interlocutory injunction, it seems to me that it would be a strong thing to require him to sign not merely a blank cheque in favour of the defendant, if it turned out that he should not have been granted the injunction, but a series of blank cheques in favour of third parties of whose very existence and interest he may be unaware and for whose losses he may find himself liable even though he is entitled to his injunction.
As Mr Howe says, if a third party is detrimentally and unfairly affected by an interlocutory injunction, his interest can either be put before the court by the defendant, as happened in Galaxia, or he can himself make an application to the court to vary or discharge the interlocutory injunction or to extend to him the benefit of the cross undertaking.
If it could be said that the court was overburdened with such applications by third parties or that there were many cases of injustice to third party because of the absence of such a wide cross undertaking, then there might be more in this point. However, I have not had my attention drawn to any case which has led to a procedural problem, nor any reports, whether in the law reports or legal commentaries, of a perceived injustice in this connection." 47 Accordingly, I am not persuaded that it would be appropriate to impose the sort of wide cross undertaking indemnities on a claimant seeking an interlocutory injunction. That is not to say that the court should never consider imposing a wider cross undertaking in damages than that usually extracted from an applicant for an interlocutory injunction. It is fair to say that the argument in this case has ensured that I will henceforth think a little more carefully about the terms of any cross undertaking in damages to be extracted from a claimant in return for the grant of an interlocutory injunction. 48 Quite apart from this, it seems to me that Miss Heal's contention suffers from a further problem, namely whether the effect of the wider cross undertaking which she seeks can properly be imposed. The fact that it may have been open to Bahr Behrend to apply for an extension of the cross undertaking, or even if the court could and should have imposed a wider cross undertaking on January 11 or 25, 2002, it does not mean that the court can impose such a cross undertaking retrospectively."
1 Cites

1 Citers


 
Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others [2003] EWHC 1205 (Ch); Gazette, 17 July 2003; Times, 05 June 2003; [2003] 1 WLR 1633
23 May 2003
ChD
The Vice-Chancellor, Sir Andrew Morritt
Litigation Practice, Media
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed and unknown person. Held: The court was able to make the order sought against persons unknown. There were valid distinctions between different classifications of such persons, but the requirement was that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.
1 Cites

1 Citers

[ Bailii ]
 
Mohammed Ali Shaher and others v British Aerospace Flying College Limited [2003] ScotCS 155; 2003 SLT 791; 2003 SC 540
29 May 2003
IHCS
Lord Abernethy and Lord Johnston and Lord Marnoch
Scotland, Litigation Practice, Damages
The pursuers claimed for the death of their son, a trainee pilot aged 19, in a flying accident. The defenders reclaimed against the Lord Ordinary's awards of £35,000 to each parent. In the course of the reclaiming motion the pursuers invited the Extra Division to take account of recent jury awards in deciding whether the Lord Ordinary's awards should stand. Held: The overall philosophy of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. It is this philosophy which gives to awards of damages their essential legitimacy. The parents of an adult son who was killed in a flying accident should be awarded £20,000 each under section 1(4) of the Damages (Scotland) Act 1976 for their bereavement. ""As it seems to us, there is clearly a huge gulf not only between the level of judicial awards and the level of two recent jury awards in respect of the loss of an adult child but between the level of judicial awards and the level of recent jury awards so far as bereavement generally is concerned. This, in turn, is reflected by a similar gulf as between the submissions advanced on behalf of the defenders and appellants, on the one hand, and, on the other hand, those advanced on behalf of the pursuers and respondents. We would be less than frank if we did not immediately concede very real difficulty in finding a way to bridge that gulf. "
Damages (Scotland) Act 1976 194)
1 Cites

1 Citers

[ Bailii ] - [ ScotC ]
 
Staines v Walsh Times, 01 August 2003; Gazette, 31 July 2003
10 Jun 2003
ChD
Laddies
Litigation Practice
The claimant had obtained an asset freezing order and given undertakings as to his responsibility for the costs. He had provided information about his financial status to support the injunction. The defendant paid the sum at issue into court to discharge the freezing order, when it was discovered that the claimant's financial standing had changed. Held: Had there been an application before the court to discharge the order, it would have been granted. A claimant requesting such on order had a continuing obligation to be open with the court and to inform the court of an substantial changes in his assets.

 
Raiffeisen Zentralbank Osterreich Ag v Crossseas Shipping Limited, Vipool Vora, Citi Holdings Corporation, Ajay Shah, Hemant Sanghvi [2003] EWHC 1381 (Comm)
13 Jun 2003
QBD
Mr Justice Morison
Litigation Practice

[ Bailii ]
 
UCB Bank Plc v Hedworth [2003] EWCA Civ 945
18 Jun 2003
CA

Litigation Practice, Legal Aid

[ Bailii ]
 
Jones v Her Majesty's Attorney-General sued on behalf of New Zealand Police [2003] UKPC 48
19 Jun 2003
PC
Lord Bingham of Cornhill, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
Commonwealth, Police, Litigation Practice
PC (New Zealand) The claimant was stopped driving his son to the airport. He drove off, but was stopped again. He complained at the constable's conduct. His claim was struck out. He had been stopped under road traffic legislation, but this was not available for non-traffic purposes. Held: There were disputes as to the exact circumstances in which the constable had stopped the car, but a plaintiff's claim should not be dismissed without trial save under the clearest of circumstances indicating that the claim would fail. That had not been shown here. Appeal allowed.
[ Bailii ] - [ PC ]
 
Peters v Sat Katar Co Ltd (in liquidation) Times, 01 July 2003; [2003] EWCA Civ 943; Gazette, 04 September 2003
20 Jun 2003
CA
Peter, Keene LJJ, Sir Martin Nourse
Litigation Practice, Employment
The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time. Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need to check after getting no response form the EAT to his notice. Abdelghafar did not allow for delay arising from the postal service. Here the applicant had acted initally well within the time. The court was concerned at the use of standardised clauses in correspondence.
1 Cites

[ Bailii ]
 
Y v HM Attorney-General [2003] EWHC 1462 (Ch)
24 Jun 2003
ChD

Human Rights, Litigation Practice

[ Bailii ]
 
Y v Hm Attorney General [2003] EWHC 1462 (Ch)
24 Jun 2003
ChD
The Vice-Chancellor
Human Rights, Litigation Practice



 
 The Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions; CA 25-Jun-2003 - [2003] EWCA Civ 1842; [2004] QB 310; Times, 16 July 2003
 
Attorney General v Simmons [2003] EWHC 1694 (Admin)
26 Jun 2003
Admn

Litigation Practice

[ Bailii ]
 
Westminster City Council v O'Reilly and others Times, 21 August 2003; Gazette, 11 September 2003; [2004] 1 WLR 195
1 Jul 2003
CA
Auld LJ
Licensing, Litigation Practice
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates. Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the Court of Appeal. The Order did not avoid the clear ouster of jurisdiction contained in the 1981 Act.
Auld LJ said: "the words of Section 28A and of Section 18 of the 1981 Act mean what they say. When a decision is declared final by statute, then this court [the Court of Appeal] has no jurisdiction to hear it by virtue of that provision and by Section 18 of the 1981 Act"
Supreme Court Act 1981 18 28A - Magistrates Courts Act 1980 111 - Access to Justice Act 1999 (Destination of Appeals) Order 2000 (2000 No 1071) 5
1 Cites

1 Citers


 
Morris v Fife Council [2003] Scotcs 190
4 Jul 2003
OHCS
Lord Abernethy
Scotland, Litigation Practice, Torts - Other
The pursuer sought damages from the respondent council for abuse he had suffered whilst in their care as a child. He sought jury trial, the defenders said that was unsuitable, liability being admitted. Held: This was a case which exceptionally should be heard without a jury. The events had occurred many years earlier. The nature of the claim meant that any cross-examination of the pursuer could be prejudicial to defender. In essence the claims were for psychological dinjury.
1 Cites

[ Bailii ]
 
Sphere Drake Insurance Ltd and Another v Euro International Underwriting Ltd (Revision 1) [2003] EWHC 1636 (Comm); Times, 11 August 2003; [2003] 1 Lloyd's Law Reports 525
8 Jul 2003
ComC
Thoma J
Financial Services, Litigation Practice
Relationships between Lloyds underwiters and others in the market rather than just names, could also bind the underwriter to a fiduciary relationship. Here the claimant had granted to the defendant a binding authority. This was in effect a similar relationship as would exist between underwriter and name. The defendant wrote business it knew to be contrary to the claimant's interest and it acted dishonestly.
1 Citers

[ Bailii ]
 
Coopers Payen Ltd and Another v Southampton Container Terminal Ltd and Another [2003] EWCA Civ 1223; [2004] 1 Lloyds Rep 331
11 Jul 2003
CA
Lightman J, Schiemann, Clarke LJJ
Contract, Litigation Practice
The court considered the circumstances and practice where doubt was thrown on the evidence of a single joint expert.
[ Bailii ]
 
Navigators Insurance Company and others v Atlantic Methanol Production Company Llc [2003] EWHC 1706 (Comm)
14 Jul 2003
ComC

Jurisdiction, Litigation Practice

[ Bailii ]

 
 Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen; ChD 15-Jul-2003 - [2003] EWHC 1740 (Ch)
 
Attorney General, Regina (on the Application Of) v Cameron [2003] EWHC 2144 (Admin)
15 Jul 2003
Admn

Litigation Practice

Supreme Court Act 1981 42
[ Bailii ]
 
London Borough of Hackney v Driscoll [2003] EWCA Civ 1037; Gazette, 18 September 2003; [2003] 1 WLR 2602
16 Jul 2003
CA
Lord Justice Brooke Lord Justice Kennedy Mr Justice Holman
Litigation Practice, Civil Procedure Rules
The defendant sought to set aside judgment entered in his absence. Held: The right of a defendant to have set aside a judgment where he had not known of the proceedings did not necessarily apply where, as here, he had attended one hearing, but did not attend a later hearing because he had not been notified of it.
It was necessary to clear up the issues undecided in White v Weston. Once a defendant knew of proceedings, the court had attained a jurisdiction over him, and the CPR applied. The CPR largely reproduced former practice. The new part of the rule gave the absent party opportunity to establish that he had a reasonable prospect of success, and a right of appeal, and balanced the interests of the opponent. The new rule was appropriate and had been applied correctly.
Civil Procedure Rules 39.3(5)
1 Cites

1 Citers

[ Bailii ]
 
Binks v Securicor Omega Express Ltd [2003] EWCA Civ 993; Times, 27 August 2003
16 Jul 2003
CA
Mr Justice Maurice Kay Lord Justice Pill Lord Justice Carnwath
Litigation Practice, Civil Procedure Rules
The claimant sought damages for personal injury based upon one version of events. The defendant pleaded another, contrary, set of events and objected when the claimant sought to plead an alternative case to apply if the court found the defendants version of the facts. Held: The alternative set of facts could be pleaded without the claimant swearing a statement of truth. The claim in the alternative was to be allowed.
Civil Procedure Rules 22.1
1 Cites

[ Bailii ]
 
Thomas-Everard and Others v Society of Lloyd's Times, 28 August 2003
18 Jul 2003
ChD
Laddie J
Litigation Practice, Insolvency
The claimant appealed refusal to set aside a statutory demand made by the respondent society. The proposed defence had been already been dismissed by the courts. Held: Such a consideration was very relevant, but not necessarily determinative. The debtor was obliged to proceed quickly, and could not delay his application. He had to demonstrate a gennuine triable issue. And there was no reason why challenges at the stage of the petition should be subject to different tests of substantiality. The court of appeal had given leave to appeal. The earlier decision was not determinative, and the statutory demands could be set aside.
Insolvency Rules 1986 (1986 No 1925) 6.5(4)(a)
1 Cites


 
Barry Young (Deceased) v Western Power Distribution (South West) Plc [2003] EWCA Civ 1034; Times, 18 July 2003; [2003] 1 WLR 2868
18 Jul 2003
CA
Lord Justice Laws Lord Justice Mummery Lord Justice Simon Brown
Limitation, Litigation Practice
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His widow sought to pursue an action, but it was claimed that this was out of time. Held: The first action was timeous. Section 33 was not available to the widow to provide a discretion for the judge to allow her action. Time began running for her on receipt of the post mortem report. There were no exceptional circumstances to justify the availability of any discretion in the judge. As to Walkley: "The rationale of the Walkley principle is, as already explained, that it is not the time limit in section 11 which prejudices the claimant in such circumstances but rather the fact that he had previously commenced timeous proceedings which, for whatever reason, were not then successfully pursued."
Limitation Act 1980 11 12 33
1 Cites

1 Citers

[ Bailii ]
 
Ali v Naseem Times, 03 October 2003
22 Jul 2003
ChD
Norris QC, J
Litigation Practice
The claimant sought a writ ne exeat regno against the defendant debtor. Held: The power given to the tipstaff to arrest a debtor is an elderly remedy, and should only be exercised when the requirements were strictly met, and those requirements should not be relaxed. It should only be used where it was proportionate and necessary.
Debtors Act 1869 6
1 Cites


 
Contract Facilities Ltd v Estate of Rees(dec'd) and others [2003] EWCA Civ 1191
23 Jul 2003
CA

Company, Litigation Practice
Where a stay is sought, all the circumstances must be considered. The court must consider whether the appeal would be stifled. One must not only look at the means of the appellant himself but also consider whether the money could be raised from "backers or interested persons".
1 Citers

[ Bailii ]
 
Secretary of State for Health and Others v Norton Healthcare Ltd and Others Times, 26 August 2003; [2003] EWHC 1905 (Ch)
24 Jul 2003
ChD
Lloyd J
Litigation Practice
The defendant sought a stay of a civil action against them, saying that the claimant's own action in pursuing criminal proceedings deprived it of access to former employees who might provide evidence to allow them to defend the claim. Held: It was not an abuse of process or an infringement of the defendant's right to a fair trial to allow the case to proceed. The fact that it was the clainmant's own action in taking the prosecution did not sufficiently distinguish this case from others. Witness co-operation is an inherent risk in all litigation. Each such case had to be considered on its own merits.
1 Citers


 
Ryabykh v Russia 52854/99; [2003] ECHR 396; (2005) 40 EHRR 25
24 Jul 2003
ECHR

Human Rights, Litigation Practice
The entrenched rights of a litigant would be illusory if a judicial decision by an independent body which had become final and binding could thereafter be quashed by a higher court on the application of a state official. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character. Held: The supervisory review procedure within Russia was incompatible with Article 6-1.
European Convention on Human Rights6-1
1 Citers

[ Worldlii ] - [ Bailii ]
 
Contract Facilities Ltd v Estate of Rees and others [2003] EWCA Civ 1105
24 Jul 2003
CA

Litigation Practice, Costs

[ Bailii ]
 
Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114; Gazette, 02 October 2003; [2003] 2 BCLC 603; [2007] Lloyds Rep PN 22; [2004] PNLR 16
25 Jul 2003
CA
Lord Justice Brooke Lord Justice Rix And Lord Justice Dyson
Professional Negligence, Litigation Practice
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when their losses could be minimalised. They appealed a judgment limiting the claim to 500 million pounds. Held: The case should not be limited to a claim of any certain size. The issues were an an area of developing jurisprudence, and were fact dependent. In such cases a strike out was inappropriate, and the Court should not be drawn into a mini-trial of complex cases at this stage.
Brooke LJ said: "The overriding concern is the interests of justice. So far as facts are concerned, the simpler the case is the easier it is likely for a court to be able to take a view that the basis of a claim is fanciful or contradicted by all the documentary material on which it is founded. More complex cases are unlikely to be capable of being resolved in that way. There is a danger of injustice in seeking to try such cases summarily on the documents and thus without disclosure and oral evidence tested by cross-examination. It should not be done unless the court can be confident that all the relevant facts had already been satisfactorily investigated."
1 Cites

1 Citers

[ Bailii ]
 
ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284; Gazette, 02 October 2003
25 Jul 2003
CA

Professional Negligence, Litigation Practice, Civil Procedure Rules
The claimant sought damages alleging that she had been injured by the defendants' negligence in conducting her birth. The parties sought determination of whether the court should restrict the number of expert witnesses. Held: Nothing in the rules set a specific limit of one such witness. Where the question was substantial and complex, the overriding objective required the court to keep a balance between the parties. Inevitably the defence would include evidence from the doctors themselves, and the claimant was not to be limited too strictly.
Civil Procedure Rules 35.1
[ Bailii ]
 
Mulvenna v Royal Bank of Scotland Plc [2003] EWCA Civ 1112
25 Jul 2003
CA
Sir Anthony Evans
Litigation Practice
The court considered an an application to strike out a claim for damages for the loss of profits which the claimant said he would have made if the bank had complied with its agreement to provide him with funds for a property development. Held. Even on the assumption that the bank knew of the purpose for which the funds were required and that it was foreseeable that he would suffer loss of profit if he did not receive them, the damages were not recoverable. Sir Anthony Evans said: "The authorities to which we were referred…demonstrate that the concept of reasonable foreseeability is not a complete guide to the circumstances in which damages are recoverable as a matter of law. Even if the loss was reasonably foreseeable as a consequence of the breach of duty in question (or of contract, for the same principles apply), it may nevertheless be regarded as 'too remote a consequence' or as not a consequence at all, and the damages claim is disallowed. In effect, the chain of consequences is cut off as a matter of law, either because it is regarded as unreasonable to impose liability for that consequence of the breach (The Pegase [1981] 1 Lloyd's Rep 175 Robert Goff J), or because the scope of the duty is limited so as to exclude it (Banque Bruxelles SA v. Eagle Star [1997] AC 191), or because as a matter of commonsense the breach cannot be said to have caused the loss, although it may have provided the opportunity for it to occur…"
1 Citers

[ Bailii ]

 
 Bhamjee v Forsdick and Others (No 2); CA 25-Jul-2003 - [2003] EWCA Civ 1113; Times, 31 July 2003; [2004] 1 WLR 88
 
Stanley Cole (Wainfleet) Ltd v Sheridan [2003] EWCA Civ 1046; Times, 05 September 2003; Gazette, 02 October 2003; [2003] 4 All ER 1181; [2003] IRLR 885; [2003] ICR 1449
25 Jul 2003
CA
Lord Justice Ward, Lord Justice Buxton And Lord Justice Mance
Litigation Practice, Employment, Natural Justice
The employment tribunal, in delivering its judgment had cited a decision which was not among those referred to by the parties, but it did not give an opportunity to them to comment on it before delivering its decision. Held: Such an ommission was a defect in procedure, and potentially a serious one. However in this case, it was not shown that the case referred to had had any significant impact on the decision, and therefore the original decision stood. The right to a fair hearing requires notice of all material matters of fact and law to be given to the parties. A mere procedural failure will not normally allow a review. Each such case must stand on its own facts.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 Sch1-13(1)
1 Cites

[ Bailii ]
 
Thane Investments Ltd and others v Tomlinson and others [2003] EWCA Civ 1272
29 Jul 2003
CA
Peter Gibson LJ
Litigation Practice
Peter Gibson LJ emphasised that in freezing order applications, "it is important that there should be solid evidence adduced to the Court of the likelihood of dissipation." He went on to say that it was not enough merely to point to some dishonesty on the part of the respondent to justify the making of a freezing order: "I have to say that, if that has become the practice, then the practice should be reconsidered. It is appropriate in each case for the Court to scrutinise with care whether what is alleged to have been the dishonesty of the person against whom the order is sought in itself really justifies the inference that that person has assets which he is likely to dissipate unless restricted."
1 Cites

1 Citers

[ Bailii ]
 
Ewing v Security Service [2003] EWHC 2051 (QB)
30 Jul 2003
QBD
Douglas Brown J
Police, Litigation Practice, Human Rights

Regulation of Investigatory Powers Act 2000 65(2)(a)
[ Bailii ]
 
Practice Direction (No 3) (Coal Mining hand / arm vibration syndrome: Vibration white finger) Times, 16 October 2003
31 Jul 2003
QBD

Litigation Practice, Personal Injury
The court gave directions revising the arrangements for the disposal of the actions referred to.


 
 Thomson v Kvaerner Govan Limited; HL 31-Jul-2003 - [2003] UKHL 45; 2003 SCLR 765; 2004 SLT 24; [2004] PIQR P7; 2004 SC (HL) 1
 
Bowerbank v Amos (Formerly Staff) [2003] EWCA Civ 1161; Gazette, 16 October 2003
31 Jul 2003
CA
Lord Justice Brooke Mr Justice Holman Lord Justice Kennedy
Litigation Practice
The parties had gone into business together. After a breakdown, they had now spent very considerable sums in litigation. At the trial, the judge allowed an amendment of the claim after the close of evidence. He considered that it related to matters dealt with in great detail already, and gave judgment. Held: The judge had not made his decision and therefore a Barrell test was not necessary. Nevertheless, he should have allowed the defendant to address with the pleadings as amended. The judgment must be set aside.
1 Cites

1 Citers

[ Bailii ]
 
Prudential Insurance Company of America v Prudential Assurance Company Ltd [2003] EWCA Civ 1154
31 Jul 2003
CA
Lord Justice Schiemann, Lord Justice Chadwick And Lord Justice Jonathan Parker
Intellectual Property, Litigation Practice
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of 'without prejudice' documents discovered in court proceedings here. Held: It was not sensible to elide the distinction between the two sources of justification of the 'without prejudice' rules, namely public policy, and an agreement between the parties. Public policy need have no extra territorial effect, and on occasions the contract will conflict with and if necessary override the public policy considerations. Where the court does give effect on a contractual basis, then it can have extra territorial effect. The agreement for a without prejudice basis for negotiations in this case had not intended to exclude the use of the documents world-wide.
1 Cites

[ Bailii ]
 
Behrent v Mackillop [2003] ScotCS 218
5 Aug 2003
OHCS
T.G. Coutts, Q.C.
Litigation Practice

[ Bailii ]
 
Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) [2003] UKPC 63; Times, 25 September 2003; Gazette, 16 October 2003
13 Aug 2003
PC
Lord Walker of Gestingthorpe Sir Martin Nourse Sir Andrew Leggatt
Commonwealth, Litigation Practice, Environment
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated. Held: The Board of the Council did have power to grant an interim injunction to preserve the situation pending a final ruling. That power derived from the power of any superior court to supervise its own procedures. The principles to be applied were the general ones applying those from American Cynamid, amended as necessary to accord with the context of public law. However, here the very substantial works were already under way, the claimants were understandably unable to undertake for any damages, and the balance of convenience lay against the applicants, and no order should be made.
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Haggis v Director of Public Prosecutions [2003] EWHC 2481 (Admin)
7 Oct 2003
Admn

Road Traffic, Litigation Practice

1 Citers

[ Bailii ]
 
P v P (Ancillary Relief: Proceeds of Crime) [2003] EWHC 2260 (Fam); Times, 14 October 2003; Gazette, 16 October 2003; [2004] Fam 1
8 Oct 2003
FD
Dame Elizabeth Butler-Sloss
Legal Professions, Criminal Practice, Family, Litigation Practice
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief proceedings, the parties legal representatives concluded that some part of the matrimonial assets might represent the proceeds of crime. If they succeeded in obtaining part of the assets for their client they would commit an offence. They disclosed their concerns but were refused permission to disclose their own disclosure. Held: The representatives had a duty to disclose their concerns to the authorities, but if it was necessary to disclose the tip off for the proceedings and it formed no part of any criminal purpose, they could disclose the tipping off to the other party. The Act envisaged permission to a party to make authorised disclosures. The ambit of the Act was wider than for earlier provisions, and might affect many proceedings. Negotiations could be affected just as much as any actual transfer. The Act makes no distinction between degrees of criminal property. An illegally obtained sum of £10 is no less susceptible to the definition of "criminal property" than a sum of £1million.
Proceeds of Crime Act 2002 333(4)
1 Cites

1 Citers

[ Bailii ]
 
Her Majesty's Attorney General v Mahon [2003] EWHC 2435 (Admin)
8 Oct 2003
Admn

Litigation Practice

Supreme Court Act 1981 41
[ Bailii ]
 
Law Debenture Trust Corporation (Channel Islands) Ltd v Lexington Insurance Company and others [2003] EWHC 2297 (Comm)
9 Oct 2003
ComC

Insurance, Litigation Practice

[ Bailii ]
 
Daiichi UK Ltd and others v Stop Huntington Animal Cruelty and others [2003] EWHC 2337 (QB)
13 Oct 2003
QBD

Litigation Practice

[ Bailii ]
 
Cooper v Floor Cleaning Machines Ltd and Another Gazette, 13 November 2003; Times, 24 October 2003
20 Oct 2003
CA
Ward. Scott-Baker, Thomas LJJ
Litigation Practice, Road Traffic
The judge had heard the evidence from two drivers involved in a road traffic incident. He had declared that he could find no way to prefer the evidence of one over the other. Accordingly neither had proved his or her case on the balance of probabilities, and both claims were dismissed. Held: A court might very exceptionally find itself in the position the judge said applied here, but it would be particularly rare in road traffic cases. Examining the evidence the court found for the appellant. Before resorting to the burden of proof, a court should, as in Ashraf, raise with counsel the possibility that such a course might have to be taken. The judge erred in failing to analyse the evidence and that, had he done so, he would have found that the defendants had discharged the burden of proof.
1 Cites

1 Citers


 
Sinclair Roche and Temperley (A Firm) v Somatra Ltd (Documents) [2003] EWCA Civ 1475
23 Oct 2003
CA
Schiemann, Tuckey, Longmore LJJ
Litigation Practice
The court refused an application for further documents to be disclosed, the application being made on the day before the hearing of the appeal.
1 Cites

[ Bailii ]
 
British Credit Trust Holdings v UK Insurance Limited [2003] EWHC 2404 (Comm)
24 Oct 2003
QBD
The Honourable Mr Justice Morison
Insurance, Litigation Practice
The claimant was permitted to amend the particulars of claim in an insurance dispute in order to seek declaratory relief in respect of insurance claims arising after the proceedings had started. Held: The lease had been surrendered by a deed.
1 Citers

[ Bailii ]
 
Zakharov and Others v White and Others Times, 13 November 2003
28 Oct 2003
ChD
Roderick Evans J
Litigation Practice, Contempt of Court
The defendant challenged a bench warrant issued out of the Chancery Division for his arrest. He said the lack of any written procedure made it non-compliant with his human rights, and a warrant could not be issued without a finding of contempt. Held: The rules did not make any provision, but nonetheless the court had an inherent jurisdiction to secure compliance with it's orders. The presence of rule not mentioning such a power did not negate its existence. That a bench warrant was issued in a criminal case in H did not either establish that a finding of contempt was first required in this context.
1 Cites


 
Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co [2003] EWHC 2493 (QB); Times, 07 November 2003; [2004] 1 WLR 1240
30 Oct 2003
QBD
The Hon Mr Justice Morland
Litigation Practice, Housing
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was voidable, being based upon a common mistake of law. Held: "Courts should be very slow to set aside and declare compromise agreements void on the ground of alleged common mistakes of fact or law. Before declaring a compromise agreement void the court must be satisfied that the mistake, in this case of law, was both common and fundamental to the making of the compromise agreement or to echo Bell v. Lever Brothers "was it the common assumption or pre-condition upon which the compromise agreement was made? " In this case the common mistaken assumption as to the law was the fundamental basis for and precondition of the compromise agreement, indeed its only springboard. The appeal was dismissed.
1 Cites

1 Citers

[ Bailii ]
 
Daejan Investments Ltd v The Park West Club Ltd. (Part 20 Buxton Associates [2003] EWHC 2872 (TCC); [2004] BLR 223
3 Nov 2003
TCC
David Wilcox J
Litigation Practice, Construction
Application to amend pleadings to substitute pleaded requirement to complete construction.
[ Bailii ]
 
The Advocate General for Scotland for and on Behalf of the Commissioners of Inland Revenue v Taylor [2003] ScotCS 278; 2003 SLT 1340
5 Nov 2003
OHCS
Lord Maclean And Lord Menzies And Lord Macfadyen
Litigation Practice

[ Bailii ] - [ ScotC ]
 
Kerry Anne Drinkall (A Minor Who Sues By Her Mother and Litigation Friend) v Dean Harry Whitwood [2003] EWCA Civ 1547; Times, 13 November 2003
6 Nov 2003
CA
Lord Justice Jonathan Parker Lord Justice Simon Brown Lord Justice Thomas
Personal Injury, Litigation Practice
The claimant, a child, had sought damages. An agreement was made to compromise the claim. Later the child sought to withdraw from it. Held: No court order had been made to approve the compromise, and therefore no binding arrangement existed. Dietz was binding and clear. Estoppel might have been available in different circumstances.
1 Cites

1 Citers

[ Bailii ]
 
Southern and District Finance Plc v Elizabeth Mary Turner [2003] EWCA Civ 1574
7 Nov 2003
CA
Lord Justice Brooke Sir Martin Nourse Lord Justice Longmore
Consumer, Litigation Practice
The defendant sought to assert that the agreement under which possession of her house was sought was an extortionate credit bargain. She had to obtain leave to appeal out of time. Held: The rules required an application to be supported by evidence. In this case the leave had been granted without formal consideration of the need for an application for leave.The matter should be treated as an application to the Court of Appeal. As to the substantive issue, this was a matter which should be heard, and the leave to appeal was given.
Consumer Credit Act 1974
1 Cites

[ Bailii ]
 
Savings and Investment Bank Ltd (In Liquidation) v Fincken [2003] EWCA Civ 1630; Times, 25 November 2003; Gazette, 15 January 2004; [2004] 1 WLR 667; [2004] 1 All ER 1125
14 Nov 2003
CA
Lord Justice Rix Lord Justice Carnwath
Litigation Practice
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the perjury. Held: The court had to balance the competing needs of fairness and expedition. There was nothing in the authorities (save Merrill Lynch) to support the judgment now appealed. It was a real question whether the shares at the centre of the controversy were disclosable in any event, and it was not clear that the without prejudice protection was being abused. The judge should not have been informed of the admission. The public interest in without prejudice discussion was not to be diminshed.
Rix LJ observed that the public interest in encouraging parties to speak frankly to one another in aid of reaching a settlement is very great and ought not to be sacrificed save in truly exceptional and needy circumstances: "It is of course distasteful for this or any court to avert its eye from an admission which, subject to any point about value, appears to incriminate Mr Fincken in lying in a sworn document. However, in the tension between two powerful public interests, it seems to me that that in favour of protection of the privilege of 'without prejudice' discussions holds sway – unless the privilege is itself abused in the occasion of its exercise."
1 Cites

1 Citers

[ Bailii ]
 
Attorney General v Saxena [2003] EWHC 2930 (Admin)
21 Nov 2003
Admn

Litigation Practice

Supreme Court Act 1981 41
[ Bailii ]
 
Koshy v Deg-Deutsche Investitions - Undentwicklungs Gesellschaft Gmbh [2003] EWCA Civ 1718
24 Nov 2003
CA
Lady Justice Hale Lord Justice Mummery Lord Justice Carnwath
Litigation Practice, Costs
One party had been ordered to pay the costs of an unsuccessful attempt to discharge injunctions and strike out the action. The applications failed (badly) and the costs were ordered to be taxed and paid forthwith. Later there was a trial, and the previously unsuccessful party succeeded. That party then sought to appeal the original costs judgment out of time. The application failed. Held. Mummery LJ observed: "The unusual feature of the case is that a successful defendant seeks, after final judgment in the action, to set aside and reverse on appeal an interlocutory order made before trial. I do not say that this is impossible in principle, but it is certainly a most unusual form of appeal in practice. In most cases interlocutory orders made in the course of proceedings cease to have any independent practical significance after the proceedings have been tried and final judgment entered. A court would not normally entertain an appeal after final judgment, attempting to reopen a costs order made inter partes at an interlocutory stage on the ground that the facts as found by the trial judge were different from what they were alleged to be at the date of the interlocutory order." and " I have reached the conclusion that the appeal should be dismissed, though with some hesitation, as I do not regard the result as entirely fair or satisfactory.
" I start from the position that this is in substance an attempt, after the trial is over and in the light of the results of the trial and the findings made at it, to re-litigate an interlocutory costs order. No court, whether on an application to set aside at first instance or by way of appeal, is receptive to such an application. It is bound to be a difficult exercise for the court to review the exercise of a discretion made at an early stage where not all the evidence is available or all the facts known or even all the issues identified. As for the parties, more time will be taken up and additional costs incurred.
Harman J had exercised his discretion on the costs of the hearing to set aside freezing orders by taking into account all the circumstances of the applications. The court would not normally interfere with his discretion on costs unless it could be demonstrated that he had taken a wrong approach to the exercise of his discretion or had made an order which was plainly wrong.
This court is being asked to interfere with the exercise of his discretion on a very different basis. It is not being asked to look at all the circumstances in which he exercised his discretion or at his approach or at the result at the time of the order, but at one circumstance only: namely a comparison between (a) the affidavit evidence placed before Harman J. on the ex parte application for the freezing orders and the applications to set them aside on the issue of DEG obtaining knowledge about the profits made by Lasco and Mr Koshy; and (b) the findings of Rimer J. on that issue at the trial.
. . What this court is being asked to do is to cancel an order for costs, which was made in the exercise of the discretion by having regard to all the circumstances at that time, solely on the basis of what has transpired at the trial on an issue of disputed fact. . . in my judgment, it would be wrong and potentially unfair to DEG in these circumstances for the court to set aside the costs order made by Harman J. If the exercise of discretion is to be reviewed in circumstances of an alleged material non-disclosure with a view to making a different order for costs, it can only be fairly and satisfactorily done in this case by an application at first instance, in which the issues of fact are defined and on which evidence can be adduced by both sides about the circumstances in which the orders were made, including orders for costs."
1 Citers

[ Bailii ]
 
Hill v Bailey Times, 05 January 2004; Gazette, 15 January 2004; [2004] 1 All ER 1210; [2003] EWHC 2835 (Ch); [2004] 1 All ER 1210; [2004] CP Rep 24; [2004] 1 Costs LR 135
25 Nov 2003
ChD
Lightman J
Costs, Legal Aid, Litigation Practice
Costs orders had been made against each party in favour of the other. One was legally aided. Held: Though the legally aided party was entitled to some protection against enforcement of an order for costs, he was not protected against the other party exercising a right of set off under the mutual costs orders. A set-off does not place the person against whom it is asserted under any obligation to pay, but merely reduces the amount that he can recover.
Access to Justice Act 1999 11
1 Cites

1 Citers

[ Bailii ]
 
Attorney General v Alexander [2003] EWHC 3076 (Admin)
26 Nov 2003
Admn
Maurice Kay, MacKay JJ
Litigation Practice
Application by HM Attorney General, pursuant to section 42 of the Supreme Court Act 1981, for a civil proceedings order against Mr Alexander. The basis of the claim is that Mr Alexander has habitually and persistently and any without reasonable ground instituted vexatious civil proceedings, and made vexatious applications within civil proceedings, whether instituted by himself or others.
Supreme Court Act 1981 42
[ Bailii ]
 
Arkin v Borchard Lines Limited Andzim Israel Navigation Company Ltd and others v Managers and Processors of Claims [2003] EWHC 2844 (Comm)
27 Nov 2003
QBD
The Honourable Mr Justice Colman
Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
Flightwise Travel Services Ltd and Another v Gill and Others Times, 05 December 2003; {2003] EWHC 3082
27 Nov 2003
ChD
Neuberger J
Litigation Practice
Those applying for international asset freezing orders should bear in mind the following points: An asset freezing order (other than a proprietary order) was a serious interference with a person's rights, and was usually granted without notice. Accordingly an applicant had a duty to fully inform the respondent well before the on notice hearing. A sworn statement in support should normally be supplied. A failure to comply with an undertaking might lead to the order's discharge. The order should be framed to cause minimum interference. A sufficiently strong case for making the order must be shown, and the onus lay on the applicant to show a clear need: "once the court considers that there is a real case for granting an injunction the fact that it will cause or appears that it will cause no or little harm to the respondent is a fact that the applicant can pray in aid."
1 Citers


 
Wardlaw v Dr Farrar [2004] Lloyd's Rep Med 98; Gazette, 22 January 2004; Times, 05 December 2003; [2003] EWCA Civ 1719
27 Nov 2003
CA
Dame Elizabeth Butler-Sloss (President of the Family Division) Lord Justice Brooke (Vice-President of the Court of Appeal (Civil Division)) and
Professional Negligence, Litigation Practice
The claimant appealed an award of £1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death. Held: It was vital now that medical negligence cases were being conducted in the county court that practice as to experts' disclosure of research in the High Court should be followed there also. Had that been done here there would have been a much more orderly approach to the medical evidence.
Law Reform (Miscellaneous Provisions) Act 1934 - Fatal Accidents Act 1976
1 Cites

1 Citers

[ Bailii ]
 
Aldi Stores Ltd v Holmes Buildings Plc [2003] EWCA Civ 1882
1 Dec 2003
CA
Auld, Hale and Dyson LJJ
Construction, Limitation, Litigation Practice
What makes a claim a "new claim" as defined in section 35(2) of the Limitation Act 1980 is not the newness of the case according to the type or quantum of the remedy claimed, but the newness of the cause of action that it involves. A cause of action is a set of facts that enable one person to obtain a remedy from another; as opposed to a form of action used as a convenient and succinct description of a particular category of factual situation.
Limitation Act 1980 35(2)
1 Citers

[ Bailii ]
 
Attorney General v Purvis [2003] EWHC 3190 (Admin)
3 Dec 2003
Admn

Litigation Practice
Application for vexatious litigant order
Supreme Court Act 1981 41
[ Bailii ]

 
 Attorney General v Bhamjee; Admn 8-Dec-2003 - [2003] EWHC 3114 (Admin)
 
United States of America v Philip Morris Inc and others [2003] EWHC 3028 (Comm)
10 Dec 2003
QBD
The Honourable Mr. Justice Moore-Bick
Litigation Practice
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of professional legal privilege. Held: Before legal advice privilege can be claimed in respect of any communication three conditions must be satisfied: (i) the communication must pass between the lawyer and his client; (ii) it must be confidential; and (iii) it must be for the dominant purpose of obtaining or giving legal advice.
1 Cites

1 Citers

[ Bailii ]
 
Paddick v Associated Newspapers Ltd [2003] EWHC 2991 (QB)
10 Dec 2003
QBD
Tugendhat J
Litigation Practice, Costs
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material. Held: The application failed. The claimant had stated that the balance of the material did not relate to the case, and in the absence of evidence to the contrary that statement was to be accepted. As to the costs of transcribing tape recordings, the court was unable to find convincing direct authority, and made the costs costs in cause.
1 Cites

[ Bailii ]
 
Yousif v Jordan Times, 22 January 2004; [2003] EWCA Civ 1852
10 Dec 2003
CA
Ward LJ, Wilson J
Litigation Practice, Professional Negligence
It was wrong for a court to make a finding of no case to answer in a medical negligence case where there was conflicting medical evidence. The claimant was a foreign national acting in person. The court had failed to acknowledge the conflict in the medical evidence, and he should himself survey that evidence before considering such a finding.
[ Bailii ]
 
Mahajan v Waldman and others [2003] EWCA Civ 1897
10 Dec 2003
CA

Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
Dar International FEF Co v Aon Ltd Times, 19 December 2003
10 Dec 2003
CA
Mance LJ
Litigation Practice, Costs
There had been at an earlier stage an order requiring security for costs to be provbided. That order had been discharged. The defendant sought to appeal, and for the purposes of that appeal theat the costs order be restored. Held: The court had the power to consider such a re-instatement, for the appeal and for the action below, but one would not be made in this case.
1 Cites


 
Benham Limited v Kythira Investments Ltd and Another [2003] EWCA Civ 1794
15 Dec 2003
CA
Lord Justice Simon Brown Mr Justice Keene Lord Justice Scott Baker
Litigation Practice, Agency
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant's case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a fraud by an employee of the claimants who had now left. The claimants had been unable to call his evidence to support their claim. Held: "Rarely, if ever, should a judge trying a civil action without a jury entertain a submission of no case to answer. That clearly was this court’s conclusion in Alexander -v- Rayson and I see no reason to take a different view today, the CPR notwithstanding. Almost without exception the dangers and difficulties involved will outweigh any supposed advantages. "
Scott Baker LJ: "It seems to me that the wise words of Romer LJ in Alexander v Rayson in 1936 still hold good today. Only in the most exceptional circumstances should a judge entertain a submission to dismiss an action at the close of the claimant's evidence without putting the defendant to his election. This was not such a case and it is difficult to envisage many situations when such a course would be appropriate."
1 Cites

1 Citers

[ Bailii ]
 
Hansom and others v E Rex Makin and Wright [2003] EWCA Civ 1801
18 Dec 2003
CA
Lord Justice Keene Lord Justice Mance
Professional Negligence, Civil Procedure Rules, Litigation Practice
The court considered a strike out application. Held. Although there might be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair trial is still possible, relief will necessarily be granted: "CPR 3.9 deals generally with the relief from sanctions imposed for failure to comply with a rule, practice direction or court order. It could not be the case that whenever such a sanction has been imposed and however flagrant or persistent the failure, the defaulting party could have it set aside by showing that a fair trial was still possible. The present appeal does not, however, involve flagrant or persistent misconduct, but, rather, all too familiar inefficiency and lack of diligence. And in such a case it is likely to be very material that a fair trial is still possible. But this cannot necessarily be decisive. All the circumstances must be considered. Prejudice to professional defendants is among them and it may exist even though it does not involve prejudice to the fairness of the trial process. In the present case, prejudice in the form of the detriment involved in having litigation hanging over professional defendants' heads was a decisive factor identified by the master and judge."
Civil Procedure Rules 3.9
1 Citers

[ Bailii ]
 
Di Placito v Slater and others [2003] EWCA Civ 1863; Times, 29 January 2004; [2004] 1 WLR 1605
19 Dec 2003
CA
Lord Justice Laws Lord Justice Potter Lady Justice Arden
Wills and Probate, Litigation Practice
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action. Held: When considering whether to discharge such an undertaking the court should ask: "whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made."
Potter LJ: "It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and "must be made in an unequivocal manner and must not run counter to any important public interest", Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications "neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public" (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case."
A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences: "It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36."
1 Cites

1 Citers

[ Bailii ]

 
 Robinson v Fernsby, Scott-Kilvert; CA 19-Dec-2003 - [2003] EWCA Civ 1820; Times, 20 January 2004; [2003] WTLR 529

 
 Shawton Engineering Ltd v DGP International Ltd and Another; CA 19-Dec-2003 - [2003] EWCA Civ 1956
 
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