Guarantor’s obligations not affected save by matters outside the guarantee. The beneficiary of a guarantee was restrained from enforcement of it whilst an allegation of fraud remained unresolved.
Ind Summary 26-Jun-1995, Times 02-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.89853
The direction gives precise guidance for citing cases before the Court of Appeal. Practitioners are to use Weekly Law reports citations first wherever available.
Ind Summary 17-Jul-1995, Times 23-Jun-1995
England and Wales
Cited – Governor and Company of the Bank of Scotland v Henry Butcher and Co and others CA 13-Feb-2003
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.84861
Judgments remained confidential until announced in court: arrangements for copies for the parties.
Ind Summary 17-Jul-1995
England and Wales
Updated: 21 January 2023; Ref: scu.84621
A husband and wife crossed a road. The wife, appreciating that the danger from the traffic, ran across. The husband stood in the middle of the road and then went ahead, but was struck by a vehicle and injured. He was significantly affected by alcohol, and evidence had been led at the trial indicating the effect of alcohol on accident statistics, particularly relating to men. The judge concluded that the husband was 25 per cent to blame for the accident.
Held: The driver’s appeal succeeded to the extent that the plaintiff was 50% responsible for his injuries.
Stuart-Smith LJ considered the correct approach to the fact that the husband had been affected by alcohol in the context of the issue of apportionment. He replied to a submission which sought to equate the approach to a drunken driver to the situation of a drunken pedestrian, as follows: ‘That may be so in the case of a driver who puts himself in the control of an object which is capable of great damage if it is not properly controlled, but I am not persuaded that it makes a significant difference in this case in the case of a pedestrian. It seems to me that the pedestrian’s conduct has to be judged by what he did rather than the explanation as to why he did it.’ Having referred to the statistical information which had been before the judge, he said: ‘The result of that statistical survey is no doubt a matter of expert knowledge not available to a layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it.’
As to the test of admissibility laid down in the 1972 Act 1972: ‘But that section in no way extends the principles upon which expert evidence is admissible. An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. In the reference to an ‘issue in the proceedings in question’ relates to a factual issue and not to the conclusion of law based upon such fact’.
Stuart-Smith LJ laid down the limits of expert evidence: ‘In such cases the function of the expert is to furnish the Judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the Judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be. What he is not entitled to do is to say in effect ‘I have considered the statements and special evidence of the eyewitnesses in this case and I conclude from their evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point’. These are facts for the trial Judge to find based on the evidence that he accepts and such inferences as he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the Court, on which the expert’s opinion is wholly irrelevant and therefore inadmissible’.
Stuart-Smith, Peter Gibson and Hutchison LJJ
Times 17-Jul-1995, (1996) PIQR 36
Law Reform (Contributory Negligence) Act 1945 1(1), Civil Evidence Act 1972
England and Wales
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – Lunt v Khelifa CA 22-May-2002
The claimant pedestrian had been injured when hit by a car driven by the defendant as she stepped into the roadway. Both parties appealed against the assessment of contributory negligence. The claimant had a blood alcohol level three times that . .
Cited – Allen v Cornwall Council QBD 20-May-2015
The claimant was injured riding his bicycle, and alleged failure by the respondent highway authority. The court now considered an application for leave to appeal against an order allowing the production of evidence of an expert in cycling skills and . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.83063
Service by post at the last known address of a defendant is not deemed effective if the defendant can show that he did not actually receive it.
Ind Summary 31-Jul-1995, Times 06-Jul-1995
Rules of the Supreme Court Order 10 r1
England and Wales
Updated: 21 January 2023; Ref: scu.80644
A warrant for possession is unenforceable after six years without first obtaining the leave of the court.
Times 17-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.81123
An agreement between the parties to extend the time for filing a defence, ousts the automatic striking out rules.
Times 05-Jun-1995, Ind Summary 03-Jul-1995
England and Wales
Updated: 21 January 2023; Ref: scu.81301
An application for extension of time is implied in an application to set down; no strike out should follow.
Times 30-Jun-1995, Gazette 19-Jul-1995
County Court Rules 1981 Order 17 rule 11(9)
England and Wales
Updated: 21 January 2023; Ref: scu.80501
It was not an abuse of process, to restart a claim within the limitation period after an automatic striking out of an earlier action. Millett LJ referred to the ‘same dilatory progress’ all the parties to the action continued to make after the guillotine date. Sir Thomas Bingham MR said: ‘I would add only this by way of footnote. If a plaintiff whose first action is automatically struck out under Ord.17,r.11(9) is subject to an order for costs and brings a second action within the limitation period, it is certainly open to the defendant in that second action to seek an order that the second action be stayed until the costs of the first action are duly met. That is not a ground upon which the plaintiff can be precluded from bringing the second action, but it may, in my judgment, afford grounds upon which he may be restrained from pursuing it until he has paid his debts.’
Millett LJ, Sir Thomas Bingham MR
Times 18-Jan-1996, Gazette 21-Feb-1996, [1996] 1 WLR 571
County Court Rules 1981 17(11)
England and Wales
Cited – Dowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
Cited – Reville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
Cited – Worldwide Corporation Limited v GPT Limited and GPT (Middle East) Limited CA 2-Dec-1998
Reasons for dismissal of application for leave to appeal – refusals of leave to amend particulars. The court must take into account the public interest in the efficient administration of justice which may be damaged by the disruption and delay . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.80752
Security for costs for ‘nominal plaintiff’ only after some duplicity shown.
Times 02-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.80351
Exact rules for affidavits must be followed on Order 14 proceedings. The solicitor swearing an affidavit on behalf of the bank had not disclosed the source of his information. Though the defect might be technical, the defendant was being deprived of his right to cross examine the witness and of his right to defend, and the rules must be strictly complied with.
Independent 23-May-1995, Times 31-May-1995, [1995] CLY 4228
Rules of the Supreme Court Order 14
England and Wales
Updated: 21 January 2023; Ref: scu.78214
Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s liability to the third party has not yet been established. In handling claims, instructing solicitors and so forth, the insurers act as agents for the company and are entitled to reimbursement for their expenses.
Lord Justice Saville said: ‘Under the Act the rights of the insured against the insurer are transferred to the third party on (in the case of an insured company) the making of a winding up order etc.: see s.1(b) of the Act. It follows from this that a statutory transfer can take place before the obligation of the insurer to pay arises i.e. before the liability of the insured has been established. In such an event, since it is clear from the authorities that the third party is to be put in no better position than the insured, the third party does not obtain the right to immediate payment until the liability of the insured is established. .
That right [the right of the third party to immediate payment by the insurers] only arises when, in each case, the claim is established, just as that right, while owned by the insured, would also arise only when the particular claim in question was established. It is only when that right arises that the insurers come under the correlative obligation to make payment. To my mind it follows that as each claim is established (whether before or after the statutory assignment), the right to payment arises and thus the amount of available insurance is in effect diminished, so that when it is exhausted later established claims have no right to an indemnity. . .’
Lord Justice Saville
Independent 09-Jun-1995, Times 16-May-1995, [1995] 2 Lloyd’s Rep 437
Third Parties (Rights Against Insurers) Act 1930 1(1)(b)
England and Wales
Appeal from – Cox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .
Cited – AXA Reinsurance (UK) Plc v Field HL 12-Sep-1996
The terms originating ’cause’ and ‘event’ are to be differently construed, one means a continuing situation and the other refers to a discrete event.
Under the ‘LMX Spiral’ Lloyds’ syndicates wrote substantial excess of loss business.The cross . .
Cited – Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Dicta adopted – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – Freakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar CA 11-Feb-2005
Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company . .
Cited – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.79585
The standard of evidence required to show cause to serve proceedings overseas is that the applicant has an arguable case, not that he probably will win.
Ind Summary 26-Jun-1995, Times 22-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.77674
Post judgment application for admission of further witness statement.
John Baldwin QC
[2017] EWHC 2413 (Ch)
England and Wales
Updated: 21 January 2023; Ref: scu.597472
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was bound to fail was refused. Nor was the claim bound to fail under limitation difficulties. Application refused
Kerr J
[2016] EWHC 3150 (QB)
England and Wales
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Clark v University of Lincolnshire and Humberside CA 14-Apr-2000
A student had been failed after being falsely accused of cheating, but the academic review board, on remarking the paper marked it as zero.
Held: Where a University did not have the supervisory jurisdiction of a visitor, a breach of contract . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Abramova v Oxford Institute of Legal Practice QBD 18-Mar-2011
The claimant sought damages saying that the defendant had failed to provide her with the Legal Practice Course promised. The complaints included, in particular, an attack on the practice of having students mark their own mock examination papers.
Cited – Winstanley v Sleeman and Another QBD 13-Dec-2013
The claimant’s PhD thesis had initially failed, but on an internal appeal that decision was reversed, the appellate body accepting the contention that the supervision or other arrangements during his period of study had been unsatisfactory. The . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
See Also – Siddiqui v University of Oxford QBD 2016
Kerr J refused an application for him to recuse himself based inter alia on the fact that counsel for the Defendant before him was a member of his former chambers: ‘It is true that I was a member of the same chambers of Mr Milford until June 2015. . .
See Also – Siddiqui v The Chancellor, Masters and Scholars of The University of Oxford QBD 7-Feb-2018
. .
See Also – Siddiqui v University of Oxford QBD 16-Mar-2018
Post judgment issues . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 December 2022; Ref: scu.572350
The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
Held: The claimants had been subjected to a long and sustained campaign of harassment by the defendant organisation and its associates. The court would grant an injunction. An order establishing an exclusion zone however should only be made where an injunction had been tried and had failed. The powers inherent in the police had been inadequate to prevent the harassment, and it was correct to invoke the 1997 Act. Injunctive relief should be no wider than was shown to be necessary.
Owen J
[2005] EWHC 372 (QB), Times 07-Apr-2005
Protection from Harassment Act 1997 3, Supreme Courts Act 1981 37(1)
England and Wales
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.223863
Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking a striking out for delay must also show some post-writ prejudice caused by the delay.
Times 07-Aug-1995, Ind Summary 11-Sep-1995
England and Wales
See Also – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.88878
Rules for providing copies of written CA judgments as or before handed down.
Gazette 31-Aug-1995
England and Wales
Updated: 20 December 2022; Ref: scu.84933
An order for Security for costs was possible even where the trial may yet proceed in a foreign jurisdiction. Even though the court had jurisdiction over the defendants, a court could stay an action to allow an action to proceed abroad if that would be more appropriate.
Ind Summary 14-Aug-1995
England and Wales
Updated: 20 December 2022; Ref: scu.77894
The Court dismissed an appeal from a decision to dispense with notice under the section. A notice to quit had been served and a summons for possession issued with an appendix containing details of the allegations of breach of the tenancy agreement and nuisance.Only much later was an application was made to dismiss the proceedings on the grounds that the notice did not comply with section 8. The judge ruled that the particulars in the notice were inadequate but dispensed with the need for a notice under section 8(1)(b). In considering the words ‘just and equitable’ the court referred to judgments considering those same words in the context of the Rent Act 1977, which emphasised the necessity to ‘consider all the circumstances’. Every case will depend upon its own facts and the pleaded ground or grounds relied on in the notice. The court must take all the circumstances into account, both from the view of the landlord and the tenant, and decide whether it is just and equitable to dispense with the required particulars.
Aldous LJ, Butler-Sloss LJ
Times 08-Aug-1995, Ind Summary 28-Aug-1995, (1995) 28 HLR 270
England and Wales
Cited – Knowsley Housing Trust v Revell; Helena Housing Ltd v Curtis CA 9-Apr-2003
The local authority landlord commenced proceedings for possession, but then transferred the properties to a registered social landlord. The tenants objected that the new landlords could not continue the proceedings.
Held: The transfer moved . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.82720
Availability of legal aid to a party is not a relevant consideration to rules of forum non conveniens.
Independent 29-Sep-1995, Times 20-Oct-1995
England and Wales
Appeal from – Connelly v RTZ Corporation Plc and others HL 24-Jul-1997
The availability of legal aid to a party is not part of criteria for choosing jurisdiction save in exceptional circumstances.
Lord Goff discussed the Spiliada case: ‘the burden of proof rests on the defendant to persuade the court to exercise . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.79443
Substantial changes and explanations of procedures before Court of Appeal (Civil).
Gazette 06-Sep-1995
England and Wales
Updated: 20 December 2022; Ref: scu.79564
A judgment is to be read as a whole, and not in same way as an Act of Parliament.
Ind Summary 04-Sep-1995
England and Wales
Updated: 20 December 2022; Ref: scu.79209
The company was in financial difficulties but not yet in liquidation. It sold its assets, including a claim against the defendant insurance company, to its principal shareholder Mr. Sood. The company’s action against the defendant was proceeding in the county court and the company had been ordered by the district judge to give security for costs. Mr. Sood applied under the County Court equivalent of R.S.C. Ord. 15, r. 6 to be joined as an additional plaintiff. The judge granted the order subject to a condition that Mr. Sood give security for costs in the sum of pounds 5,000. The reason he gave was that: ‘I think it is important that if the defendant is to be adequately protected here then Mr. Sood should be placed on terms similar to those of the order for security for costs against the plaintiff company . . Of course if he defaults on that, he does not join as a party to the action.’
Held: The court discharged the order. The question was whether it was appropriate for the judge to have exercised his discretion so that the defendant: ‘should enjoy the same protection against costs in relation to Mr. Sood as it already enjoyed against the plaintiff company under the unappealed order of the district judge.’ Sir Thomas Bingham M.R: this was not a proper ground upon which to exercise the discretion: ‘Cornhill is in no worse position than if the company had sold its business to Mr. Sood before bringing proceedings and he had been the plaintiff from the outset. It is in no worse a position than, instead of being joined, Mr. Sood had commenced a fresh action as a plaintiff. And the potential injustice against which the security order was intended to protect Cornhill no longer exists: the company’s action is stayed unless and until it provides the security ordered: but in Mr. Sood it faces a personal plaintiff who is liable to the extent of his available assets to meet any costs order made against him. Depending on his means, he may or may not be able to meet such an order, but the law affords a defendant no protection against costs which may not be paid by impecunious plaintiffs. Had Mr. Sood been ordered to pay, and give security for, the costs occasioned by or thrown away as a result of his joinder, there could in our judgment be no sustainable objection to the order. But we can find no justification for the order in fact made.’
Sir Thomas Bingham MR, Auld and Ward LJJ
Times 05-Sep-1995, [1995] 1 WLR 1517
England and Wales
Cited – Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.80380
A party to litigation made an offer on the day before trial of settlement without prejudice save as to costs. At trial it made an open offer in similar terms which was rejected. After reading a draft unfavourable judgment, the party applied to be allowed to accept the offer, contending that such an offer was to remain open for 21 days in any event. The rules allowed a party to withdraw such an offer, and such situations must be decided by ordinary rules of offer and acceptance. The rules which apply to acceptance of a payment in do not necessarily apply to offers to settle. There is no rule requiring the permission of the court before allowing the withdrawal of an offer of settlement, and the test for whether such an offer remained capable of acceptance was the normal one of offer and acceptance.
Gazette 08-Jun-2000, Times 21-Jun-2000
England and Wales
Updated: 12 December 2022; Ref: scu.84743
Reports, which had been prepared for the purposes of a police complaint procedure, could be entitled to protection from disclosure under a public interest immunity certificate. The court also considered the relationship between the documentation and the decision as to whether a trial wasto be by judge alone, or with a jury. Cost is also a consideration: ‘The case as it stands will be very lengthy, very expensive, very burdensome and very difficult to control if tried by a judge alone. If tried by a judge and jury it will be even lengthier, even more expensive, even more burdensome and even more difficult to control.’ The fact that sight of a document for inspection may give the inspecting party a litigious advantage in the litigation does not of itself make production of the document unfair: ‘The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter’. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it, if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.’
Sir Thomas Bingham MR, Rose, Morritt LJJ
Independent 28-Feb-1995, Gazette 15-Mar-1995, Times 19-Jan-1995, [1995] 1 WLR 447
England and Wales
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Branson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
Cited – Brooker and Brooker v Chief Constable of Thames Valley Police CA 26-Oct-1998
The plaintiffs claimed damages against the respondents for wrongful arrest and false imprisonment. By mistake the defendants disclosed a letter from a senior officer supporting the allegation, despite which the Police Complaints Authority had denied . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.89742
An allegation of prejudice through delay is to be fully proved by the person so asserting.
Ind Summary 11-Dec-1995, Times 07-Dec-1995
England and Wales
Updated: 09 December 2022; Ref: scu.89304
A party doing nothing on learning of the hearing only at mid-trial cannot later appeal.
Independent 30-Nov-1995
England and Wales
Updated: 09 December 2022; Ref: scu.84176
RSC should be changed to allow Judge choice to refuse to admit expert evidence.
Times 25-Jan-1995
England and Wales
Updated: 09 December 2022; Ref: scu.85678
Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5.
Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: ‘The rule refers to ‘the party intending to sue or.. intended to be sued’. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies’ rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase ‘correct the name of the party’ but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue.’
Evans LJ
Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017
England and Wales
Affirmed – International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .
Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.82399
The court may not treat a writ as having been dated at the time when it came to the notice of the defendant, in order to circumvent the need for a writ to be served in time.
Times 14-Feb-1995, Ind Summary 18-Apr-1995
England and Wales
Updated: 09 December 2022; Ref: scu.81258
The laws of contempt of court apply just as much in arbitration proceedings in chambers as in other proceedings.
Ind Summary 16-Jan-1995
England and Wales
Updated: 09 December 2022; Ref: scu.78464
Reasons for discontinuance of asset freezing order
Popplewell J
[2018] EWHC 662 (Comm)
England and Wales
Updated: 09 December 2022; Ref: scu.606865
Allegation of breach of Norwich Pharmacal order.
Sir David Eady
[2018] EWHC 342 (QB)
England and Wales
Updated: 09 December 2022; Ref: scu.605804
Appeal from refusal of document discovery and against strike out of claim: ‘The appeals raise issues as to the steps that can be taken by an individual and by those advising him, to find out which employer or employers are on balance likely to have exposed the individual to asbestos where the individual is diagnosed as suffering from mesothelioma caused by asbestos exposure.’
Stephens J
[2015] NIQB 62
Northern Ireland
Updated: 09 December 2022; Ref: scu.549867
The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are in themselves insufficient to dislodge the principle of separate corporate identity. In order to justify lifting the veil of incorporation, ‘special circumstances (must) exist indicating that (the company) is a mere facade concealing the true facts’
Warren J
[2006] EWHC 2973 (Ch), [2006] ArbLR 18
England and Wales
See Also – Dadourian Group Int Inc v Simms and others (No 1) CA 11-Apr-2006
The court was asked to consider how it should exercise its discretion to order a world-wide asset freezing order.
Held: It dismissed the appeal in this case, but took the opportunity to provide eight guidelines for the way in which the . .
Appeal from – Dadourian Group International Inc and others v Simms and others CA 20-Dec-2006
The court considered the exercise by the court of its discretion to release a party who has obtained a freezing order from his undertaking not to use information obtained from the party against whom the freezing order is made in contempt proceedings . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.246809
The court considered for the first time, the effect of the Rome Treaty. It ‘came about because of a tin can’ .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, not as at the date that the statement of claim was filed, unless a statute changing the law expresses a clear contrary intention.
Lord Denning MR
[1974] Ch 381, [1974] 3 All ER 51
England and Wales
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.235766
Na exception of iniquitie, nullitie, or uther quhatsumever, may be proponit or alledgit contrare the executioun of an decrete-arbitral lauchfullie gevin: Bot the proponer thairof sould use and alledge the samin be way of actioun gif he pleisis for reduction and retractatioun of the said decrete.
[1540] Mor 662
Scotland
Updated: 06 December 2022; Ref: scu.543980
Richards LJ, Mitting J
[2013] EWHC 3068 (Admin)
England and Wales
Updated: 04 December 2022; Ref: scu.516543
An offer to settle must be backed by a payment into court in debt actions. The defendant here could have protected his position by a payment into court, and therefore a Calderbank offer was ineffective.
Ind Summary 27-Jun-1994, [1996] PIQR Q110
Rules of the Supreme Court 22.14
England and Wales
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.89274
An undertaking to not use discovery documents still applies after they have been read out in court.
Times 11-Nov-1993
England and Wales
Updated: 01 December 2022; Ref: scu.89273
An amendment to pleadings was allowed after the limitation period had expired in order to add a claim based on the same facts. The claim was brought by the father of a young man injured in a motor cycle accident. For fourteen days the father stayed at his son’s bedside, watching him deteriorate in health and fall into a coma and then die. The father now appealed against an order striking out his claim.
Held: Appeal dismissed, finding that there was no trace in the medical report of ‘shock’ no sudden appreciation by sight or sound of a horrifying event. The report described a process continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest. In particular the son’s death when it occurred was not surprising but expected. There was no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.
Peter Gibson LJ, Staughton LJ, Waite LJ
Times 10-Jun-1994, [1994] 5 Med LR 170, [1994] EWCA Civ 26
England and Wales
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 November 2022; Ref: scu.89280
The parties disputed the extent of the duty on the defendant to make disclosure of documents. Over 2.5 million possible documents had been identified. The bank now claimed privilege for documents relating to the complaint issues created in discussions between the bank and its regulator.
Held: The documents had privilege unless and until the bank sought to rely upon the findings of the regulator.
Birss J
[2015] EWHC 1557 (Ch), [2015] WLR(D) 251, [2016] 1 WLR 361, [2015] 2 BCLC 401
England and Wales
Updated: 30 November 2022; Ref: scu.547602
Lord Denning MR doubted the applicability of the criteria in American Cynamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the balance of convenience.
Browne LJ said: ‘where a defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the ‘special factors’ affecting the balance of convenience which are referred to by Lord Diplock in American Cynamid Co v. Ethicon Ltd [1975] 1 All ER 504 at 511, [1975] AC 396 at 408.’
Lord Denning MR, Browne LJ
[1978] 1 All ER 411
England and Wales
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Coventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .
Cited – Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.441202
A foreign resident defendant failing to comply with an order for discovery should be barred from defending after having been given notice.
Times 10-Nov-1997
England and Wales
See Also – Canada Trust Company and others v Stolzenberg and others CA 28-Apr-1997
(Oral judgment, Millett LJ) The question was whether it is a proper exercise of discretion to refuse to make an order for the production of documents at an interlocutory hearing on the sole ground that they are wanted in order to establish the . .
See Also – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
See Also – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
See Also – Canada Trust Co and Others v Stolzenberg and Others (No 4) CA 14-May-1998
When appealing against fully argued refusal of jurisdiction, parties may not bring in additional evidence at that appeal save in exceptional circumstances. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.89801
Any party was free to put in evidence statements where the party who had prepared them had himself decided not to call the evidence. There was no power to call the person to give that evidence, but it could be admitted on the basis that it was hearsay evidence. This reversed the old rule. The court still does not have the power to order a party to tender his witness.
Times 03-Aug-2000
England and Wales
Cited – Thomas-Everard and Others v Society of Lloyd’s ChD 18-Jul-2003
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. . .
See Also – Society of Lloyd’s v Sir William Otho Jaffray BT ComC 3-Nov-2000
. .
Appeal from – Society of Lloyd’s v Jaffray and others CA 8-Oct-2001
Applications in group litigation between the Society of Lloyd’s and Names at Lloyd’s – ‘ threshold fraud point’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.89376
Compensation order which was payable over nine years must be excessive.
Ind Summary 06-Nov-1995
England and Wales
Updated: 27 November 2022; Ref: scu.80743
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence and the date of the FTT’s decision renders the decision unsafe.
Held: There is no such rule. In tribunal cases, as in court proceedings, excessive delay in making or promulgating a decision is not itself a reason for setting the decision aside. The correct approach is to ask whether the delay has caused the decision to be unsafe so that it would be unjust to let it stand. The only significance of the fact that delay between the hearing and the decision in an asylum case has exceeded three months is that, where the decision is challenged on an appeal, the Upper Tribunal should examine the FTT judge’s factual findings with particular care to ensure that the delay has not caused injustice to the appellant.
[2018] EWCA Civ 1391
England and Wales
Cited – Sambasivam v Secretary of State for the Home Department CA 10-Nov-1999
Where an Immigration Appeal Tribunal heard a case and the judgment would depend upon an assessment of the applicant as to his credibility, a delay of three months between the hearing and the delivery of the judgment was too long. The impression made . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Cobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Cited – London and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
Appeal from – SS (Sri Lanka), Regina (On the Application of) v Secretary Of State for the Home Department Admn 17-Feb-2009
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.618390
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council alleging professional misconduct by a barrister did not attract absolute privilege, since they were not yet a step in an inquiry before an Inn of Court.
Matters submitted to proceedings before an inquiry conducted by the Inn would attract the same privilege as they would in proceedings before a court.
Devlin LJ said: ‘On such a point form is of the first importance; it is by form rather than by the substance of the complaint that a writ is to be distinguished from a letter before action.’
and ‘the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor.’ and
‘It is not at all easy to determine the scope and extent of the principle in Watson v M’Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and pre-cognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court.’
Devlin LJ explained the rationale for the distinction between domestic tribunals and those recognised by law: ‘A private institution, such as a club, may set up a body to determine questions of admission and expulsion and it may be composed entirely of lawyers and may follow with exactitude the procedure of a court of law. But absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. The public is not interested in the membership of a private club. The significance of . . the . . requirement . . that the Court or tribunal should be recognised by law . . is that it shows that the public is interested in the matter to be determined by the court. Parliament would not, for example, regulate the disciplining of solicitors if there were not a public interest in the sort of men who practise as solicitors. The same consideration applies to the Bar.’
Devlin LJ considered that absolute privilege fell into three categories: ‘The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan [1905] AC 480 in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v. White (1914) 30 TLR 591 the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.’
Devlin LJ, Sellers LJ
[1962] 1 QB 237, [1961] 3 WLR 866, [1961] 3 All ER 740, (1961) 105 Sol Jo 647
England and Wales
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Buckley v Dalziel QBD 3-May-2007
There was a heated dispute between neighbours, culminating in some generous or perhaps over-generous pruning by the claimant of the defendant’s trees and shrubs on the boundaries. The defendants reported the matter to the police. Both Mr and Mrs . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Silcott v Commissioner of Police of the Metropolis CA 24-May-1996
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – Iqbal v Mansoor and Others QBD 26-Aug-2011
The claimant sought the disapplication of the limitation period in order to pursue the defendant solicitors, his former employers, in defamation. . .
Cited – Iqbal v Mansoor and Others QBD 26-Aug-2011
The claimant sought the disapplication of the limitation period in order to pursue the defendant solicitors, his former employers, in defamation. . .
Cited – Iqbal v Mansoor and Others QBD 26-Aug-2011
The claimant sought the disapplication of the limitation period in order to pursue the defendant solicitors, his former employers, in defamation. . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Cited – O’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.180924
The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.
Times 16-Feb-1993
England and Wales
Updated: 26 November 2022; Ref: scu.81996
Applications for suspension of enforcement pending appeal and similar.
Clarke LJ
[2004] EWCA Civ 1265
England and Wales
See Also – Dumford Trading Ag v OAO Atlantrybflot (Costs) CA 26-Jan-2005
Costs order upheld – leave to appeal to the House of Lords refused. . .
See Also – Dumford Trading Ag v Oao Atlantrybflot CA 26-Jan-2005
an appeal against summary judgment under CPR Part 24 for some pounds 1,890,000 under two contracts of guarantee. . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.572363
Teare J considered the without prejudice rule: ‘In my judgment an exception can only be allowed where it is of the same character as one already established or where it is an incremental but principled extension of an existing exception, as was the exception in Oceanbulk v TMT.’
Teare J
[2018] EWHC 1763 (Comm)
England and Wales
Cited – Briggs and Others v Clay and Others ChD 25-Feb-2019
Defendants’ application to exclude evidence said to be ‘without prejudice’ The case concerned a pension scheme for employees within a group of companies. In a prior action by way of a Part 8 claim brought by the trustees of the scheme, the court had . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.619842
The defendant appealed from a decision requiring him to disclose documents which he said were held on a without prejudice basis. Mr Halborg, a solicitor, acted for his parents and a family company under a conditional fee agreement on their claim against a firm of architects, Savage Hayward. Mr Halborg engaged EMW Law to assist him under an agency arrangement which itself incorporated a CFA in that it provided that EMW would be paid only fees which Mr Halborg or the Halborg claimants had recovered from Savage Hayward. The proceedings against Savage Hayward were settled on terms under which they were liable to pay the Halborg claimants’ costs. When it appeared that Mr Halborg had failed to recover anything in respect of its fees, EMW sued him for breach of implied terms of the agency agreement that he would take all reasonable measures to recover its fees.
A significant issue was whether Mr Halborg had made all reasonable efforts to recover EMW’s costs in his negotiations on costs with Savage Hayward’s solicitors (BMW) and, indeed whether the costs had finally been settled (which Mr Halborg disputed). Mr Halborg sought to withhold, as covered by the WP rule, disclosure of correspondence and notes of communications with BMW relating to those negotiations (referred to as the ‘Class A Documents’).
In his judgment, Newey J (as he then was), after discussing the criticism of the reasoning in Muller, said that he should proceed on the basis that there was an exception which encompasses the facts of the Muller case. He held that the documents should be disclosed, stating, at [64]:
‘ . . I have concluded that, to echo Lord Walker in Ofulue v Bossert and Lord Clarke in the Oceanbulk case, justice clearly demands that an exception to the without prejudice rule (whether that encompassing the facts of the Muller case or another, comparable, exception) should apply . . .’
Newey J set out a number of factors which supported that conclusion, of which three seem to me particularly relevant for the present case. He noted that Mr Halborg had referred in his defence to the negotiations with BMW, and further:
‘iv) It is hard to see how EMW’s claim would be justiciable without disclosure of Class A Documents. EMW and the Court would both, on the face of it, be in the dark as to, for example, what any payments Savage Hayward have made related to, how they came to be made on that basis, why nothing has been paid in respect of other items of costs and, should it prove to be the case that no settlement has been concluded, why not;
v) I see no likelihood that recognising that an exception to the without prejudice rule applies would deter parties from seeking to settle. Those undertaking negotiations will, if well informed, already be aware that the without prejudice rule will not apply if there is a dispute about whether they have reached agreement and that the facts of the Muller case have been held to fall within another exception. The existence of the Muller exception, moreover, means that communications otherwise protected by the without prejudice rule may become disclosable and admissible because the other party to negotiations unilaterally chooses, for reasons of his own, to put forward a case about the negotiations in litigation with a third party; . . ‘
Newey J
[2017] EWHC 1014 (Ch)
England and Wales
See Also – EMW Law Llp v Halborg ChD 22-May-2015
. .
Cited – Briggs and Others v Clay and Others ChD 25-Feb-2019
Defendants’ application to exclude evidence said to be ‘without prejudice’ The case concerned a pension scheme for employees within a group of companies. In a prior action by way of a Part 8 claim brought by the trustees of the scheme, the court had . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.583683
In a dispute between an Italian company and British one, each sought to have the case heard in its own country. The British company asserted that the case begun in Italy had been begun after at best misrepresentation by the other company, and sought an injunction preventing its being heard in Italy. The UK court refused to issue the injunction. It had the power to do so, but the parties must rely upon the Italian courts to discover the truth, and was asserted fell short of abuse of process.
Times 01-Mar-2000, Gazette 24-Feb-2000
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Comercial Matters 1965 Cmd 3986, Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968
England and Wales
See Also – Molins Plc v GD Spa PatC 2-Feb-2000
. .
Appeal from – Molins Plc v G D Spa CA 29-Mar-2000
In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.83798
Applicant must show good reason for delay when applying to extend writ.
Times 15-Nov-1993
Rules of the Supreme Court order 6 rule 8
England and Wales
Updated: 22 November 2022; Ref: scu.89270
[1997] EWCA Civ 1728
England and Wales
Updated: 20 November 2022; Ref: scu.142124
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance.
Held: The appeal was dismissed. The privilege against self-incrimination was capable of being invoked. The test is as to whether there is a ‘real and appreciable risk of criminal proceedings . . being taken against’ the witness.
Lord Wilberforce said: ‘However, it is only too clear (and I deliberately use the language of reluctance) that supply of the information and production of the documents sought would tend to expose the respondents to a charge of conspiracy to defraud . . A charge of conspiracy to defraud, so far from being as it sometimes is, a contrived addition to other charges, is here an appropriate and exact description of what was being done . . Unless some escape can be devised from this conclusion, the privilege must inevitably attach.’ and
‘Mr. Nicholls was at pains to make clear that he was not, in these submissions, attempting to negate or undermine the privilege against self-incrimination. This has been too long established in our law as a basic liberty of the subject – in other countries it has constitutional status – to be denied. It has received modern recognition in section 14 of the Civil Evidence Act 1968 and in this House.’
The protection extended to material the discovery of which which might ‘Set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character.’
‘It may seem to be a strange paradox that the worse, ie the more criminal, their [ie the defendants’] activities can be made to appear, the less effective is the civil remedy that can be granted, but that, prima facie, is what the privilege achieves.’ and ‘This has been too long established in our law as a basic liberty of the subject (in other countries it has constitutional status) to be denied.’ ‘It is certainly correct to say, that existing law and practice to some extent prevent matter disclosed on discovery in civil proceedings from being used to the prejudice of the disclosing party. The protection is described with different words: the matter must not be used for an ‘improper’ purpose’ or a ‘collateral object’ or, most strongly, ‘otherwise than in the action, in which they are disclosed’.
Lord Fraser of Tullybelton: ‘At one stage, the argument seemed to depend on the possibility that the court which ordered the discovery might place an express restriction on the use of any information disclosed. In my opinion, any argument on that basis must be rejected. A restriction by the court making the order would, no doubt, be effective to bind the party who obtained the order, but it can hardly be suggested that it would be effective to prevent a prosecutor in the public interest from using, or an English criminal court (a fortiori a Scottish criminal court if a conspiracy were prosecuted in Scotland) from admitting the information in evidence at a trial. All evidence which is relevant is prima facie admissible in a criminal trial, although the trial judge has a discretion to exclude evidence which, though admissible, has been obtained by unfair means from the accused after commission of the offence: Reg. v. Sang [1980] AC 402. But it is obvious that a person who has to rely on an exercise of judicial discretion is in a less secure position than one who, by relying on the privilege, can avoid providing the information in the first place. ‘ and ‘The main basis of the argument was an implied rule, said to be derived from the case of Riddick v. Thames Board Mills Ltd. [1977] QB 881, to the effect that evidence which has been disclosed under compulsion in a civil action cannot be used against a person who has disclosed if for the purposes of another civil action or of a criminal prosecution. It was argued that any incriminating information disclosed by a person making discovery or answering interrogatories would enjoy complete protection by reason of that rule, because the information would have been given under compulsion, in respect that refusal to give it would be contempt of court. I would make one preliminary observation on that argument. It seems to me to go much too far. If it is well-founded, it means that the established practice whereby judges warn witnesses that they need not answer questions addressed to them in oral examination in court, if the answers might tend to incriminate them, is unnecessary, because refusal to answer would, in the absence of the warning, be contempt of court and any incriminating evidence having been given under compulsion would not be admissible against them in criminal proceedings. I approach a proposition leading to that result with some scepticism. In any event, the case of Riddick was concerned only with the question of the use to which documents recovered on discovery could be put by the party who had obtained discovery. Lord Denning M.R. at p. 896H, stated the principle in a sentence thus: ‘A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and for no other purpose’ (emphasis added). That statement of principle would have to be extended to include cases such as Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133, where an order was made for discovery of information for the purpose of its being used in another action. The principle is, I think, that information is not to be used by the party who gets discovery for purposes other than that for which production was ordered. But the case of Riddick had nothing to do with the use of information for prosecution in the public interest. On the contrary, both Lord Denning M.R. at p.896 and Stephenson L.J. at p.901, referred with approval to the observations of Talbot J. in Distillers Co. (Biochemicals) Ltd. v. Times Newspapers [1975] QB 613, 621, recognising that there might be a public interest in favour of disclosure which would override the public interest in the administration of justice which goes to preserve the confidentiality of documents disclosed on discovery. That is clearly correct. If a defendant’s answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the court which ordered the interrogatories, and probably without such leave. If that is right the object of the privilege against self-incrimination would not be completely achieved by relying on any rule which can be derived from Riddick v. Thames Board Mills Ltd. [1977] QB 881.’
Lord Wilberforce, Templeman L
[1982] AC 380, [1981] 2 All ER 76, [1981] 2 WLR 668
England and Wales
Appeal From – Rank Film Distributors v Video Information Centre CA 1980
The plaintiff film companies accused the defendants of pirating their films. They obtained Anton Piller orders which required the defendants to permit the plaintiffs to enter their premises to inspect and remove any unauthorised films, and three . .
Cited – Rasu Maritima SA v Perusahaan (the Pertamina) CA 1978
Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction. . .
Cited – Anton Piller v Manufacturing Processes Ltd CA 8-Dec-1975
Civil Search Orders possible
The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search . .
Cited – Holder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.230905
On an ex parte application for a Mareva injunction, the party applying should file an affidavit making proper and fair disclosure of the fact supporting the allegation. Such an affidavit should normally be accompanied by enough documents to make the issues clear, but need not be accompanied by substantial numbers of documents.
Saville LJ
Ind Summary 22-Feb-1993
England and Wales
See Also – National Bank of Sharjah v Dellborg and Others CA 9-Jul-1997
The parties disputed the meaning of a Tomlin order to which they had agreed.
Held: Saville LJ said ‘if the circumstances surrounding the making of the agreement showed to a reasonable man that to read paragraph 8 as covering only the amounts . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.84175
The court was asked as to the extent of the Secretary of State’s discretion and obligation to consider a person’s Article 6 rights when requested personally to serve a judgment of an overseas court pursuant to a request for mutual legal assistance from the government of the country of that overseas court. The Claimant said that by serving the judgment the Secretary of State would be directly assisting in the enforcement of a foreign conviction obtained in circumstances which included a flagrant denial of justice. The Secretary of State suggested it would be no more that an administrative role in accordance with her responsibility to assist another state. She would be merely giving the Claimant a copy of the judgment, that her discretion in such circumstances was limited, and that responsibilities under Article 6 were not engaged.
Held: In exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served.
The consequences which the court considered would ensue for the respondent by service of the judgment were summarised: ‘Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment.
Remaining in the United Kingdom would have significant consequences for the claimant once the judgment is served. Although there is presently no extradition arrangement between the United Kingdom and Egypt, on any request for extradition, the claimant could not dispute the facts. Egypt would then be seeking the extradition of a man guilty of manslaughter. Of course, the claimant would have the protection rights under Part 2 of the Extradition Act 2003. Further, a final judgment in the United Kingdom might well lead to an Interpol ‘red notice’. He could not then leave the United Kingdom for fear of being arrested.’
Goldring LJ referred to four factors which, he said, constituted ‘sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith’. Those factors were: (i) the background of public pressure after the respondent’s acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation; (iii) in the course of the appeal hearing, the respondent’s legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts.
There was sufficient evidence for the Secretary of State to consider whether article 6 was engaged: ‘For article 6 to be engaged the disregard of a person’s article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self-incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Brown’s speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present.’
Goldring LJ, Wyn Williams J
[2013] EWHC 663 (Admin), [2013] WLR(D) 133
European Convention on Human Rights 6, Human Rights Act 1998
England and Wales
At Admn – Ismail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472040
The claimant said that whilst he was a passenger on a flight, he ingested broken glass in a drink. The trial of his case took place in his absence and he successfully set aside judgment against him in default when he failed to appear. The defendant now sought to re-instate the default judgment.
Held: The judge did not have a sufficient evidential basis for concluding that the claimant had voluntarily not attended. There had been evidence before the court to suggest a medical condition justifying his absence. The case was remitted for retrial before a different judge.
Lord Bingham of Cornhill, Judge LJ, Robert Walker LJ
[1998] EWCA Civ 146
England and Wales
Cited – Shocked and Another v Goldschmidt and Another CA 4-Nov-1994
A party’s failure to appear at the trial implied that he had made certain choices which he was not to be allowed to go back on when seeking to set aside any judgment made. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.143624
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are particular. There must be a good reason in the public interest for hearing such a case, and the House cited, as an example, a case: ‘where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists or are anticipated so that the issue will most likely need to be resolved in the near future.’
Lord Slynn of Hadleigh said: ‘My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.’
Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Jauncey of Tullichettle, Lord Steyn and Lord Clyde
Gazette 03-Mar-1999, Times 12-Feb-1999, [1999] UKHL 8, [1999] 1 AC 450, [1999] 2 All ER 42, [1999] 2 WLR 483
England and Wales
On appeal from – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Sun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .
Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina, (Ultraframe (UK) Ltd) v Central Arbitration Committee CA 22-Apr-2005
Two trade unions had sought recognition. Ballots had been held which almost secured recognition but fell a handful of votes short. The Unions criticised the way the ballots had been conducted, saying that a number of employees had not received . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
Applied – Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another CA 1-Dec-2020
Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.85536
Post judgment – claim for litigation privilege.
[2013] EWHC 149 (TCC), 146 Con LR 218
England and Wales
Updated: 14 November 2022; Ref: scu.471186
The court was asked whether goodwill was to be regarded as an asset in the context of an asset freezig order. A third party company was subject to such and they were said to have broken the order by the purchase at an undervalue of the company business. They now argued that such a sale was not the disposal of an asset within the order.
Held: The appeal failed. The fact that goodwill is an intangible makes it no less an asset than other intangibles, such as choses in action.
Rix, Black, Lewison LJJ
[2013] EWCA Civ 35
England and Wales
Cited – Darashah v UFAC (UK) Ltd CA 1982
A Mareva order had been obtained. The order explicitly included goodwill as an asset of the company, but the defendant argued still that it was not covered as an asset for the injunction.
Held: The court rejected the assertion.
Lord . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470803
Case management conference – application for disclosure of Claimants’ ATE insurance policy.
The Senior Master
[2010] EWHC 1643 (QB)
England and Wales
Updated: 13 November 2022; Ref: scu.470759
Application is for an order that the court approve the terms of an order which is in terms largely agreed between the parties, and by which they have settled the litigation between them. There is included an application for the court’s permission for the making of a statement in open court
Tugendhat J
[2013] EWHC 58 (QB)
England and Wales
Updated: 13 November 2022; Ref: scu.470591
Application by defendant for stay of proceedings – parallel action in Europe
Henderson J
[2012] EWHC 2761 (Ch)
England and Wales
Updated: 13 November 2022; Ref: scu.470136
A claim to a right of a witness against self incrimination must be made by that person in person on oath though substantiation elsewhere.
Times 28-Nov-1997, [1997] EWCA Civ 2648
England and Wales
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2022; Ref: scu.80111
(Ontario) The Board considered whether an interest in a mining claim was exigible under a writ of fieri facias against his lands or goods.
[1913] UKPC 46, [1913] AC 828
Canada
Updated: 10 November 2022; Ref: scu.467492
Steps taken by intervention of judges to ensure proper management of appeals and lodging of skeleton arguments.
Times 07-Nov-1997
England and Wales
Cited – Nascimento v Kerrigan CA 23-Jun-1999
The Practice Direction requiring Skeleton Arguments to be prepared on applications for leave to appeal was not ultra vires, and correctly described the test to be applied by the court where an application for leave to appeal was made after leave to . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.84863
Application to have judgment set aside.
Burton J
[2012] EWHC B26 (Comm)
Updated: 09 November 2022; Ref: scu.467260
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement negotiations. She now sought to use the new information to use he re-opening of the ancillary relief proceedings.
Held: Information obtained for the purposes of criminal proceedings through letters of request could not be used for additional purposes.
Held: The decision in the BOC case was wrong and that the court was not bound by it. It also concluded that the fact that material obtained under the 2003 Act had been adduced in open court in a criminal trial did not render it admissible in proceedings not identified in the requests.
Lord Dyson MR, Hallett, McFarlane LJJ
[2012] EWCA Civ 1550, [2013] Lloyd’s Rep FC 115, [2013] 2 WLR 1123, [2013] Fam 276, [2013] Fam Law 389, [2013] 1 FCR 371, [2012] WLR(D) 351, [2013] 1 FLR 1095, [2013] 1 FAM 276
Crime (International Co-operation) Act 2003
England and Wales
See Also – Gohil v Gohil FD 25-Sep-2012
The parties had divorced and financial relief settled. W now applied to have the order set aside on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. W had attended his later trial and obtained much . .
Cited – Tchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .
See Also – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
See Also – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.466289
In supervisory proceedings against lawyers, claims of abuse of process are to be pursued at the substantive hearing and not by way of pre-emptive applications. Delay in bringing an application to enforce a solicitor’s undertaking can be relevant to the exercise of the discretion to enforce it summarily.
Lord Woolf MR, Hutchison LJ, Mummery LJ
Times 06-Aug-1997, [1997] EWCA Civ 2220, [1998] 1 WLR 400
England and Wales
Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.89734
Where leading counsel is unavailable for trial through own mismanagement, party is free to ask for adjournment – not to be prejudiced.
Times 24-Oct-1997
England and Wales
Updated: 09 November 2022; Ref: scu.88890
Person accused of misrepresentation is entitled to primary and specific finding by the judge on that allegation.
Times 10-Oct-1997
England and Wales
Updated: 09 November 2022; Ref: scu.83817
The court has no inherent power to order security for costs, outside the established reasons, against a limited company, if no abuse of process was identified.
Gazette 01-Oct-1997
England and Wales
Updated: 09 November 2022; Ref: scu.77616
Some forms used by police in reports to the Crown Prosecution Service attract public interest immunity from disclosure in an action against police. Public Interest Immunity is not subject to distinction between task of investigating a complaint and of reporting an investigation.
Gazette 03-Sep-1997, Times 20-Aug-1997, [1997] EWCA Civ 2160
England and Wales
Updated: 09 November 2022; Ref: scu.82714
This case raises questions as to firstly, the extent of the dictates of fairness when First-tier Administrative Appeals Chamber Tribunals are dealing with litigants in person and second, whether any unfairness fulfills the criteria in Cart v Upper Tribunal
Haddon-Cave J
[2012] EWHC 2724 (Admin)
Updated: 06 November 2022; Ref: scu.465717
Applications for further orders regarding disclosure of documentation and for orders enforcing freezing orders.
Gloster DBE J
[2012] EWHC 3116 (Comm)
Updated: 06 November 2022; Ref: scu.465684
Post judgment application for variation
[2012] EWHC 3008 (Ch)
England and Wales
Updated: 06 November 2022; Ref: scu.465407
The applicants sought leave to appeal against a possession order made for arrears under their mortgage. A possession order had been suspended on an arrangement as to payment. The way the society calculated its payments meant that the arrears continued to climb. After complaint the applicant stopped payments, and complained to the Ombudsman, whose decision led to the respondent writing off all but some arrears which it then sought to be paid in full by return.
Held: The order allowing payment by instalments continued in effect, and the society remained bound by it. Ward LJ said: ‘I do not know whether to characterise this application as a storm in a tea cup, a sledgehammer taken to crack a nut or a comedy of errors. ‘
Ward LJ
[1997] EWCA Civ 1296
England and Wales
See Also – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.141692
A County Court judge looking at cumulative delay may look to particular instances of delay.
Times 24-Apr-1997
England and Wales
Updated: 06 November 2022; Ref: scu.89457
Sets out how bundles of documents to be prepared for Court of Appeal; distinction between core and reference bundles.
Times 14-May-1997
England and Wales
Updated: 06 November 2022; Ref: scu.84862
Court has the power to strike out an action for want of prosecution even though automatic time limits do not yet apply to the action.
Times 06-Jun-1997
England and Wales
Updated: 06 November 2022; Ref: scu.82596
A County Court judge may hear an appeal from High Court district judge if transferred to the County Court.
Times 24-Apr-1997
England and Wales
Updated: 06 November 2022; Ref: scu.82790
Judgment in default can be set aside by a plaintiff in order to renew proceedings.
Times 21-Mar-1997
County Court Rules 1981 Order 37 r 4
England and Wales
Updated: 06 November 2022; Ref: scu.84461
The rule that a witness statement should stand as evidence in chief is not inflexible; the court may order the witness to give evidence orally.
Times 02-May-1997
England and Wales
Updated: 05 November 2022; Ref: scu.79270
No application can be made for striking out during the 21 days allowed by court rules for consideration and acceptance of payment in.
Times 09-Jun-1997
England and Wales
Updated: 05 November 2022; Ref: scu.81231
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the proceedings were in chambers it was inappropriate to have anyone other than the parties and the lawyers present.
Held: Leave was given. It was proper for the court to allow a McKenzie friend for a litigant in person to help in chambers as in open court.
Ward LJ said: ‘The father seeks leave to appeal against that part of the recorder’s order which excluded his McKenzie Friend. I would easily come to the conclusion, not only that that was arguable, but that it was probably plainly wrong. The recorder ought not to have taken the view that a McKenzie friend should be removed, even if the matter proceeds in chambers as a matter affecting a child. Provided the McKenzie friend does not more than a McKenzie friend is entitled to do, that is to sit and advise and quietly to offer help, I for my part can see no objection to that whatever. I note with approval that when the matter next came to the court before his Honour Judge Paul Clarke the judge correctly and promptly , without question, permitted the presence of the friend who was then there to assist the father.’
Ward LJ, Millett LJ
Times 06-May-1997, [1997] EWCA Civ 1436, [1997] 2 FLR 423
England and Wales
Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – Re M (Contact: Family Assistance: McKenzie Friend) CA 1999
A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the . .
Cited – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Not binding – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.81919
A Judge must first quash the decision of a Tribunal before remitting a case for reconsideration by them.
Times 19-May-1997, [1997] EWCA Civ 1623
Rules of the Supreme Court Order 55 r7
England and Wales
Updated: 05 November 2022; Ref: scu.79326
The bank had made an allegation of fraudulent misrepresentation against a firm of solicitors. It appealed a strike out of its claim.
Held: An appeal court may exceptionally overturn a finding that the Defendant was not guilty of fraud in a case where that conclusion is inevitable from the facts.
Times 26-Jun-1997, Gazette 09-Jul-1997, [1997] EWCA Civ 1942
England and Wales
Updated: 05 November 2022; Ref: scu.81322
A judge may choose whether a witness summons against child is appropriate according to the child’s interests.
Times 18-Apr-1997, [1997] EWCA Civ 1306
England and Wales
Updated: 05 November 2022; Ref: scu.82083
The applicant was the widow of the former partner of the respondent. She claimed that his right to purchase her late husband’s share of the partnership was to be on payment for the goodwill. When a copy of the deed was produced, she challenged it in various actions, on various grounds, and also alleged negligence against the solicitors who drew it for failing to protect her interests. She claimed to have herself found a copy of the deed, which demonstrated fraud on the part of the defendant in obtaining the judgment in an earlier action. For various reasons, the court found the new copy deed to be not credible, and that it should not be admitted. Her appeal failed.
Lord Justice Simon Morritt, Lord Justice Phillips
[1997] EWCA Civ 1104
England and Wales
Updated: 05 November 2022; Ref: scu.141500
A notice of payment in, is not an offer capable of binding acceptance as a compromise.
Times 20-Feb-1997
Rules of the Supreme Court Order 22
England and Wales
Updated: 05 November 2022; Ref: scu.80937
Claim brought by the Liquidator of the claimant company for recovery of monies belonging to the company which the Liquidator says were diverted by the former director and controller of the company, Mr Gorecia to the account of the Defendant, at Citibank Singapore Limited
Sales J
[2012] EWHC 2168 (Ch)
England and Wales
Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 November 2022; Ref: scu.463301
County court has no power to grant an interim care injunction. It has the statutory powers given to it only.
Times 01-Jan-1997
England and Wales
Updated: 04 November 2022; Ref: scu.79947
Court to assess value of claim after acceptance of payment in from one of two Defendants.
Times 01-Jan-1997
England and Wales
Updated: 04 November 2022; Ref: scu.84404
Premature request for hearing date satisfied automatic directions rules.
Times 09-Jan-1997
County Court Rules 1981 Order 17 1193)(d)
England and Wales
Updated: 04 November 2022; Ref: scu.80395
Striking out may sometimes be too severe a punishment for failure to meet time limits, but it was a close thing.
Times 06-Dec-1996
England and Wales
Updated: 04 November 2022; Ref: scu.83029
A judge who was reviewing the taxation of a litigant in person’s bill of costs, has the powers of taxing officer. He was not limited to changing the taxing officer’s decision if it was Wednesbury unreasonable. He had his own discretion.
Times 19-Dec-1996, Gazette 13-Dec-1996
England and Wales
Updated: 04 November 2022; Ref: scu.82688
A delay causing insurers to set aside money for a claim is no prejudice to them.
Times 24-Dec-1996
England and Wales
Updated: 04 November 2022; Ref: scu.84381