SP, Regina (on The Application of) v The Lord Chancellor: Admn 12 Dec 2013

The claimant sought judicial review of a decision not to give prior approval to the claimant’s solicitors, a well-known firm of immigration lawyers, to instruct Bindmans LLP, another well-known firm of immigration lawyers, to provide ‘expert’ advice on her immigration status, and instead to indicate that the work would be funded in another way and at a different rate.
Held: The court order under which the advice was required referred to the advice of counsel, and the application named the firm and not an individual expert: ‘Providing an expert’s report for the assistance of the court is a personal task: it is the responsibility of a named individual. A firm of solicitors cannot act as an expert: in the same way, if the court orders an expert accountant to provide a report, that report has to be provided by an individual, not by ‘Arthur Anderson’ or ‘Deloittes’.’

Coulson J
[2013] EWHC 4011 (Admin)
Bailii
Legal Aid, Sentencing and Punishment of Offenders Act 2012 32, The Civil Legal Aid (Remuneration) Regulations 2013
England and Wales
Citing:
CitedKing v Brandywine Reinsurance Company CA 10-Mar-2005
Excess of Loss reinsurance. In the civil courts of England and Wales is that (with one obvious exception) expert evidence on the domestic law is inadmissible. . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Litigation Practice

Updated: 27 November 2021; Ref: scu.519014

PNPF Trust Company Ltd (Pilots’ National Pension Fund, Trustee of) v Taylor and Others: ChD 10 Jul 2009

Application to be joined to proceedings

Proudman J
[2009] EWHC 1693 (Ch), [2009] Pens LR 263, [2009] PLR 263, [2009] WTLR 1215
Bailii
England and Wales
Citing:
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 22 November 2021; Ref: scu.347721

Greenwich Ltd v National Westminster Bank Plc and Others: ChD 13 Apr 1999

It is permissible for a court to order security for costs to be paid against a plaintiff limited company incorporated out of the jurisdiction, provided it appeared just to do so. There is no need to satisfy the apparent requirements of the Companies Acts.
Residence in the Channel Islands or the Isle of Man will satisfy the condition of foreign residence.

Times 13-Apr-1999, Gazette 06-May-1999, [1999] 2 Lloyds Rep 308
Companies Act 1985 726, Rules of the Supreme Court Order 23 r 1(1)(a)
England and Wales
Cited by:
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 22 November 2021; Ref: scu.81018

Mathew v HM Attorney General: Admn 9 Oct 2013

Application for discharge of order declaring him to be a vexatios litigant.
Held: ‘ it ought to be for the applicant on a case by case basis to satisfy a court that any proposed new litigious activity on his behalf is justifiable and has a reasonable prospect of success. This is after all scarcely different from the burden placed on all claimants who wish to bring proceedings for judicial review. It is not disproportionate, in the circumstances of this case, to require him to continue under that limited fetter placed on his right to litigate and I would dismiss this application.’

Moses LJ, Mackay J
[2013] EWHC 3009 (Admin)
Bailii

Litigation Practice

Updated: 21 November 2021; Ref: scu.516325

Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2): HL 1988

Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission’. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties.
Held: The documents were supplied with the authority of the ITC.
Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: ‘Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.’

Lord Bridge of Harwich
[1988] 1 WLR 16
Vienna Convention on Diplomatic Relations 24 27, International Tin Council (Immunities and Privileges) Order 1972
England and Wales
Citing:
At First InstanceMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
CitedBancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Evidence

Updated: 19 November 2021; Ref: scu.510791

In re A (A Child) (Vulnerable Witness): FD 17 Jun 2013

Pauffley J said: ‘Once more in these long running private law proceedings it is necessary to consider competing Convention rights so as to strike the right balance between, on the one hand, achieving justice and, on the other, protecting a vulnerable young woman from the potential for further and perhaps very considerable physical as well as psychological harm. The key question is as to whether, imminently, steps should be taken which could lead to the giving, in some form or another, of oral evidence by that vulnerable individual. ‘

Pauffley J
[2013] EWHC 1694 (Fam)
Bailii

Family, Litigation Practice

Updated: 15 November 2021; Ref: scu.512056

Swinney and Another v Chief Constable of Northumbria: CA 22 Mar 1996

The plaintiff, a woman and her husband, had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into and the document was stolen, came into the possession of the person implicated. The plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff’s claim in negligence against the police was struck out, but re-instated.
Held: Police may exceptionally be liable in negligence in criminal investigations. There is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude.
Peter Gibson LJ said: ‘the Court must evaluate all the public policy considerations that may apply.’ and the position of a police informer required special consideration from the viewpoint of public policy.
Hirst LJ said:’As Laws J. pointed out in his judgment, there are here other considerations of public policy which also have weight, namely, the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates. In my judgment, public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in the Hill case [1989] A.C 53, which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.’
Ward LJ said: ‘it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police, without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected. The welfare of the community at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a duty of care, and that no consideration of public policy precludes the prosecution of the plaintiffs’ claim, which will be judged on its merits later.’

Lord Justice Hirst, Lord Justice Ward
Times 28-Mar-1996, [1997] QBD 464, [1996] EWCA Civ 1322, [1996] 3 WLR 968, [1996] 3 All ER 449, [1996] PNLR 473
Bailii
England and Wales
Citing:
CitedHill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .

Cited by:
CitedOsman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
CitedMullaney v Chief Constable of West Midlands Police CA 15-May-2001
The claimant police officer was severely injured making an arrest. He claimed damages from the respondent for contributory negligence of other officers in failing to come to his assistance.
Held: If a police officer owes a duty of care to . .
See AlsoSwinney and another v Chief Constable of Northumbria Police (No 2) QBD 25-May-1999
A police informant was owed a duty of confidentiality by the police. His information brought him into a special relationship with the police, and they could be liable in damages for failing to take reasonable steps to protect that confidence. . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedB and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
CitedWelton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
CitedAn Informer v A Chief Constable CA 29-Feb-2012
The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his . .
CitedAXN v The Queen CACD 27-May-2016
The defendant argued that greater note should have been taken on his sentencing to allow for the assistance he had given to the police after his arrest.
Held: The current accepted practice is that the text of the letter from the police to the . .

Lists of cited by and citing cases may be incomplete.

Police, Negligence, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.89660

In re Norris, Application by Norris: HL 28 Jun 2001

The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was held that the civil court was looking to different issues. In the Crown Court the onus had been on the husband. She had no right of representation, and her interests were not the same as those of her husband. She was to be allowed to challenge the order made. As the registered proprietor, the burden of proof lay on customs and excise.
Lord Hobhouse of Woodborough referred to earlier cases: ‘These are illustrations of the principle of abuse of process. Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatam or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.’

Hope, Browne-Wilkinson, Clyde, Hutton, Hobhouse LL
Times 29-Jun-2001, Gazette 26-Jul-2001, [2001] 1 WLR 1388, [2001] UKHL 34, [2001] 3 FCR 97, [2001] 3 All ER 961
Bailii, House of Lords
Drug Trafficking Offences Act 1986
England and Wales
Citing:
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedUnited States Government v Montgomery and Another HL 6-Feb-2001
An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
Appeal fromClifford R Norris, Re; In the Matter of an Application By Teresa W Norris CA 27-Jan-2000
After a drugs trial, the commissioners sought a confiscation order against the defendant’s assets. The defendant’s wife argued that the house was in reality hers. The trial judge found against her. In later proceedings enforce the order, the wife . .
CitedAshmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
CitedMcintosh v HM Advocate HCJ 31-Oct-2000
An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated . .
CitedAbbas Kassimali Gokal v Serious Fraud Office CA 16-Mar-2001
The defendant was convicted of an offence to which section 15 of the Theft Act did not apply. It involved a deception of the auditors of BCCI in concealing a number of substantial loans made to a group of companies run by the defendant. Buxton J had . .

Cited by:
CitedMay, Regina v HL 14-May-2008
The defendant had been convicted of involvement in a substantial VAT fraud, and made subject to a confiscation order. He was made subject to a confiscation order in respect of the amounts lost to the fraud where he was involved, but argued that the . .
CitedGibson v Revenue and Customs Prosecution Office CA 12-Jun-2008
The claimant’s husband had been made subject to a criminal confiscation order in the sum of pounds 5.5 million. She now sought to appeal an action against life policies in which she claimed a 50% interest.
Held: Despite the finding that she . .
CitedLamb v Revenue and Customs Prosecutions Office CA 18-Mar-2010
The appellant challenged the appointment of a receiver in respect of property registered in his name, but said to be the realisable property of a man convicted of cheating the revenue. He said that he had funded the property, and that he had not . .
CitedLarkfield Ltd and Others v Revenue and Customs Prosecution Office and Others CA 12-May-2010
The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Litigation Practice

Updated: 12 November 2021; Ref: scu.82076

The National Crime Agency v Perry and Others: QBD 12 Nov 2014

nca_perryQBD201411

The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an Agency lawyer said that since she had referred to legal advice from Israel, that should now be disclosed.
Held: The statement went no further than to say that adice had been sought. That was not enough to justify the setting aside of legal privilege. There had been no waiver.

Wilkie J
[2014] EWHC 3759 (QB)
Bailii
Citing:
AppliedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 November 2021; Ref: scu.538712

Ravenscroft v Canal and River Trust: ChD 14 Sep 2016

Special Circumstances to appoint McKenzie Friend

An application was made to have a nominated person appointed as McKenzie friend and as advocate for the claimant. The claimant’s narrow boat had been seized by the defendant for non payment of licence fees and for not having a Pleasure Boat Certificate. The Trust objected not to the use of a McKenzire Friend but to the particular person proposed, saying that he had been subject to judicial criticism in an earlier case for an alleged disregard of the costs of litigation, with outstanding costs orders unpaid against him.
Held: It was clear that the claimant needed assistance, and that in this particular case such assistance should extend to advocacy. However, the claimant should retain conduct of the case: ‘There is a fine line between providing assistance, and advocacy assistance on the one hand and conducting the litigation on the other hand. Undoubtedly Mr Moore has played a major role in this claim to date. In practice, in view of the density of the subject matter, it is inevitable that Mr Ravenscroft will need to refer documents such as the statements of case and the witness statements to a McKenzie Friend. Nevertheless, in my judgement it is right that Mr Ravenscroft should retain conduct of the claim such that he remains the point of contact with whom the CRT will deal. It is a matter for him to decide upon the extent of which he seeks assistance and it should not be assumed automatically that a McKenzie Friend will deal with everything on his behalf.’
As to the objection to the choice of friend, it was clear that much of the case presentation had benefitted from his involvement, that he was not setting out to be a rofessional McKenzie friend, and that, having got this far, it would be wring not to approve his involvement.

Marsh CM
[2016] EWHC 2282 (Ch)
Bailii
England and Wales
Citing:
CitedFamily Housing Association (Manchester) Ltd v Michael Hyde and Partners CA 1993
The Plaintiffs had filed evidence of the contents of without prejudice negotiations in order to resist an application by the Defendants to strike out the action for want of prosecution. The question was whether they were entitled to rely on such . .
CitedSomatra Limited v Sinclair Roche and Temperley (a Firm) etc CA 26-Jul-2000
In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the . .
CitedMoore v British Waterways Board ChD 10-Feb-2012
The claimant said that the defendant did not have the powers it claimed in serving notices requiring him to remove boats from a section of the Grand Union Canal.
Held: The respondent did have the power under section 8 of the 1983 Act. As a . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 November 2021; Ref: scu.569653

Ofulue and Another v Bossert: HL 11 Mar 2009

The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under section 29.
Held: The letter should not be admitted. Any admission in the first letter could not be treated as a continuing acknowledgement, and it could not now be relied upon. The House emphasised the vital importance of the without prejudice system.
Lord Hope said: ‘Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.’ and ‘The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.’
Lord Rodger of Earlsferry said: ‘it is that parties and their representatives who are trying to settle a dispute should be able to negotiate openly, without having to worry that what they say may be used against them subsequently, whether in their current dispute or in some different situation.’
Lord Walker of Gestingthorpe agreed with Lord Rodger and said: ‘As a matter of principle I would not restrict the without prejudice rule unless justice clearly demands it. In England the rule has developed vigorously (more vigorously, probably, than in other common law jurisdictions, and more vigorously than some overseas scholars, notably J H Wigmore approved.)’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2009] UKHL 16, [2009] 2 WLR 749, [2009] 2 All ER 223, [2009] 11 EG 119, [2009] NPC 40, [2009] 1 WLR 718, [2009] 2 Cr App R 2, [2009] 1 AC 990
Bailii, Times, HL
Limitation Act 1980& 29(2)
England and Wales
Citing:
CitedWhiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .
CitedWaldridge v Kennison 1794
A without prejudice admission that a document was in the handwriting of one of the parties was received in evidence because it was independent of the merits of the case. . .
CitedJones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
Appeal fromOfulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
CitedHoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedTomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
CitedUnilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
LimitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedWhiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
CitedKohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedBerkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice, Evidence

Leading Case

Updated: 11 November 2021; Ref: scu.317966

Goodwin v News Group Newspapers Ltd: QBD 27 May 2011

An associated claimant alleged contempt against another newspaper for publishing matters so as to defeat the purposes of a privacy injunction granted to her.
Held: Even though the principle claimant had been subsequenty identified with the consent of the court, the order as regards the second claimant remained in place. It was said that the Daily Mail’s article released many items of further information to identify her. False information deliberately given had other purposes, and in practice had also been damaging. However, there no purpose would be served in the court referring the matter to the Attorney-General for contempt. The claimant herself had this power, and the A-G had power to act of his own motion.

Tugendhat J
[2011] EWHC 1341 (QB)
Bailii
England and Wales
Citing:
See AlsoMNB v News Group Newspapers Ltd QBD 9-Mar-2011
The defendant resisted an order preventing disclosure of information said by the claimant to be private.
Held: At the start of the hearing before herself, she had been told that the application for an interim injunction was no longer opposed. . .
CitedLord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
See AlsoGoodwin v News Group Newspapers Ltd QBD 23-May-2011
The claimant had obtained orders restricting publication by the defendant of stories of his relationship with a woman. The order had also restrained publication of their names. The names had since been revealed under parliamentary prvilege, and the . .

Cited by:
See AlsoGoodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Contempt of Court

Updated: 11 November 2021; Ref: scu.440245

Geogas SA v Trammo Gas Ltd (The Baleares): CA 26 Nov 1990

Judge Wrong to Accept Appeal of Fact

The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused leave to appeal.
Held: The court granted leave. The judge’s action was illegitimate because these were issues of fact (or, at least, mixed fact and law) and thus not appealable as questions of law. On the application for leave to appeal, the test for the exercise of court’s discretion was whether the point was one which should be considered by the court, and not only whether the judge was thought to be in the wrong. The discretionary test for leave to appeal is that the question of law is ‘worthy of consideration by the Court of Appeal’: ‘In the final analysis, the question for this Court is: is its decision one which it considers open to any serious doubt; or (putting it another way), is there any realistic possibility that the Court of Appeal might come to a different result.’
As to an appeal under the section of the 1979 Act 1979 on ‘a question of law arising from an arbitration award’, Steyn LJ said: ‘For those concerned in this case that is a statement of the obvious. But it matters. It defines the limits of the jurisdiction of the Court hearing an appeal under the 1979 Act. The arbitrators are the masters of the facts. On an appeal the Court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of the fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the Courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a Court ought never to question the arbitrators’ findings of fact . . From time to time attempts are made to circumvent the rule that the arbitrators’ findings of fact are conclusive . . This catalogue of challenges to arbitrators’ findings of fact points to the need for the Court to be constantly vigilant to ensure that attempts to question or qualify the arbitrators’ findings of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged.’

Steyn LJ
[1991] 3 All ER 554, [1991] 1 WLR 776, [1993] 1 Lloyd’s Rep 215, Times 26-Nov-1990, [1991] 2 Lloyds Rep 318
Arbitartion Act 1979 1(3)(b)
England and Wales
Citing:
ConsideredPioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .

Cited by:
Appeal fromGeogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
CitedGuangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedHuggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.430592

Begum (Nipa) v Tower Hamlets London Borough Council: CA 1 Nov 1999

The fact that the accommodation found to be available to the applicant for housing was in Bangladesh did not make it unavailable in law. The subsections must be read separately. Accommodation could be available to the applicant even though she could not afford to travel to it. The power of the County Court to hear an appeal in such matters included the power to deal with all matters which might be heard in the High Court, including those equivalent to judicial review. The Code is not an authoritative guide to interpretation of the Act.
Auld LJ summarised what is meant by an appeal on a point of law in the context of section 204(3):- ‘It is that ‘a point of law’ includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, to which I add, also of irrationality and (in) adequacy of reasons. This broad construction of the provision is supported by the somewhat wider or more immediate power to vary given to the county court by section 204(3) than the High Court normally exercises in its judicial review jurisdiction.’

Auld, Stuart-Smith, Sedley LJJ
Gazette 17-Nov-1999, Times 09-Nov-1999, [2000] 1 WLR 306, [1999] EWCA Civ 3051, [2000] COD 31, (2000) 32 HLR 445
Bailii
Housing Act 1985 175 (1) 175(3) 204(3)
England and Wales
Citing:
CitedRegina v London Borough of Camden ex parte Pereira CA 20-May-1998
When considering whether a person was vulnerable so as to be treated more favourably in applying for rehousing: ‘The Council should consider such application afresh applying the statutory criterion: The Ortiz test should not be used; the dictum of . .

Cited by:
CitedHarouki v Royal Borough of Kensington and Chelsea CA 17-Oct-2007
The applicant sought housing as a homeles person. Her present accommodation for herself, her husband and five children was so overcrowded that continued occupation was a criminal offence. She appealed a finding that it was reasonable to continue . .
CitedLondon Borough of Wandsworth v Allison CA 15-Apr-2008
The claimant had applied for emergency housing, saying that he had suffered a deep vein thrombosis, and was vulnerable under the 1996 Act. The authority said that its finding that the VT would not put him at additional risk if homeless, was one of . .
CitedWaltham Forest v Maloba, The Law Society CA 4-Dec-2007
The applicant had been refused accomodation as homeless after disclosing the ownership of a family home in Uganda. He had lived and worked in the UK for 15 years. The authority did not accept that it had later been repossessed. The council now . .
CitedHotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .

Lists of cited by and citing cases may be incomplete.

Housing, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.78321

English v Emery Reimbold and Strick Ltd; etc, (Practice Note): CA 30 Apr 2002

Judge’s Reasons Must Show How Reached

In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the decision in their case had been arrived at. Flannery preceded the Act. Reasons may be implicit from the finding itself, and in such cases more detailed reasons may not be necessary. The need varied from case to case. For costs orders, only in those cases where an order with neither reasons nor any obvious explanation was it likely to be appropriate to give permission to appeal for lack of reasons. if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. ‘Justice will not be done if it is not apparent to the parties why one has won and the other has lost’. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision.

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Latham and Lady Justice Arden
Times 10-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 605, [2002] 1 WLR 2409, [2002] 3 All ER 385, [2003] IRLR 710
Bailii
European Convention on Human Rights Art 6
England and Wales
Citing:
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
CitedEagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .

Cited by:
CitedBudgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
CitedCheckpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
CitedWilliam Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
CitedMerer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedLogan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
CitedGrant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
CitedRichardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
CitedSykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
CitedIndependent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
CitedRichardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
CitedMathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
CitedSmithkline Beecham Plc and Another v Apotex Europe Ltd and others CA 16-Dec-2004
Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an . .
CitedStephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
CitedGolobiewska v Commissioners of Customs and excise CA 6-May-2005
The owner of a motor vehicle which had been seized by Customs applied to have it restored.
Held: the 1994 Act placed the burden on the applicant to establish that she was entitled to the return of her car, but the standard of proof was the . .
CitedLaw Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
CitedBaird v Thurrock Borough Council CA 7-Nov-2005
The defendant council appealed a finding of negligence after a dustbinman had been injured when he was struck by a wheelie bin. He had said that a malfunction in the mechanism loading the wheelie bin caused him to be hit by one.
Held: The . .
CitedFielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
CitedBaxendale-Walker v The Law Society Admn 30-Mar-2006
The solicitor appealed being struck off. He had given a character reference in circumstances where he did not have justification for the assessment.
Held: ‘The appellant knew that Barclays Bank trusted him to provide a truthful reference. . .
CitedAppiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
CitedHicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
CitedAziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
CitedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
CitedEE and Brian Smith (1928) Ltd v Hodson and others CA 23-Nov-2007
The defendants appealed grant of an interim injunction to enforce restrictive employment covenants. The second defendant had sold his interest in the claimant company in 2001, but after his consultancy ended, he set up another business, the third . .
CitedIn re A (a Child) (Duty to seek reasons) CA 19-Sep-2007
Where counsel intended to file an appeal and in case of doubt, counsel should consider requesting the judge to amplify or clarfy the reasons for making his own decision before filing his appeal. . .
CitedWilson and Another v Burnett CA 24-Oct-2007
Insufficient Evidence of Lottery Contract
The defendant won a large prize at bingo. The claimants said they had a binding oral agreement to pool each others winnings. They now appealed dismissal of their claim.
Held: The evidence had in all material respects conflicted. The . .
CitedMubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
CitedPhipps v General Medical Council CA 12-Apr-2006
Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application . .
CitedZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
CitedBurns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
CitedRolls-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 . .
AppliedGreen v Half Moon Bay Hotel (Antigua and Barbuda) PC 2-Jun-2009
The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been . .
CitedSt Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedPunch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
CitedHazelhurst and Others v Solicitors Regulation Authority Admn 11-Mar-2011
The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors . .
CitedPotts v Densley and Another QBD 6-May-2011
potts_densleyQBD11
The claimant had been a shorthold tenant. The landlord had failed to secure the deposit as required, but offered to repay it after the determination of the tenancy. The claimant now appealed against a refusal of an award of three times the deposit. . .
CitedJ K Bansi v Alpha Flight Services EAT 3-Feb-2004
EAT Redundancy – Collective consultation and information. Serota QC J said: ‘In English v Emery Reimbold and Strick Ltd . . the Court of Appeal gave guidance as to the circumstances in which a Judge might be . .
CitedIn re T (A Child: contact) CA 24-Oct-2002
The court considered an appeal in care proceedings, where it was felt that the judge’s reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out . .
CitedAdebowale v Peninsula Business Services Ltd EAT 20-Jan-2003
Burton J P said that the CA had ‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for . .
CitedRe L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
CitedIn re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
CitedSterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
CitedThe Attorney General for Northern Ireland v Crawford and Another ChNI 4-May-2016
The AG sought leave to appeal against a decision by the tribunal for the removal of a trustee of a police charity.
Held: Permission was given. The decision of the tribunal was open to proper criticism. The appeal raised several important . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Costs

Leading Case

Updated: 11 November 2021; Ref: scu.170288

Prince Abdulaziz v Apex Global Management Ltd and Another: SC 26 Nov 2014

The appellant was involved in very substantial litigation with the respondents. As a member of the Saudi Royal family he said that by convention he was not allowed to sign a witness statement, and appealed inter alia against orders requiring him to do so.
Held: The appeal failed. This had been a case management decision, and it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree’. Disclosure in its standard form at a case management hearing would require a personally signed by the party making the disclosure. The circumstances here did not justify departure from that practice.

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Hughes, Lord Hodge
[2014] UKSC 64, [2014] 1 WLR 4495, [2014] WLR(D) 515, [2015] 1 Costs LO 79, UKSC 2014/0208, [2015] 1 All ER (Comm) 1183
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary
England and Wales
Citing:
Appeal fromPrince Abdulaziz v Apex Global Management Ltd and Another CA 31-Jul-2014
The Prince appealed against orders requiring his personal signature to two witness statements concerning disclosure, rejecting an application to vary that order, imposing an unless order for non-compliance, entering judgment and refusing relief . .
CitedBroughton v Kop Football (Cayman) Ltd and Others CA 20-Dec-2012
Application for leave to appeal against case management decisions.
Held: Lewison LJ said that as a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was ‘plainly . .
See AlsoApex Global Management and Another v Global Torch Ltd and Others ChD 30-Oct-2013
The court rejected an application by Prince Abdulaziz for a variation of case management orders. . .
See AlsoApex Global Management Ltd and Another v FI Call Ltd and Others ChD 29-Nov-2013
The court dealt with several case management applications including for relief from sanctions. Prince Abdulaziz claimed that he should not be required to provide a personal statement because as a member fo the Saudi Royal Family there was a . .
At First InstanceGlobal Torch Ltd v Apex Global Management Ltd ChD 13-Feb-2013
Applications within unfair prejudice petitions. . .
LeaveGlobal Torch Ltd and Others v Apex Global Management CA 18-Apr-2013
Oral renewal of an application for permission to appeal . .
See AlsoGlobal Torch Ltd v Apex Global Management Ltd and Others CA 10-Jul-2013
. .
Appeal fromApex Global Management and Another v Global Torch Ltd and Others ChD 30-Oct-2013
The court rejected an application by Prince Abdulaziz for a variation of case management orders. . .

Cited by:
CitedZC v Royal Free London NHS Foundation Trust QBD 26-Jul-2019
Defamation/privacy claims against doctors failed
The claimant, seeking damages for alleged defamation, now asked for the case to be anonymised.
Held: The conditions for anonymisation were not met. The anonymity would be retained temporarily until any time for appeal had passed.
As to . .
CitedBPP Holdings Ltd and Others v Revenue and Customs SC 26-Jul-2017
The Revenue had challenged a decision by the FTTTx to bar it from defending an appeal as to VAT liability. It had failed first to meet procedural time limits and on the issue of an unless order had failed to comply. The Revenue challenged the . .
CitedBarton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.539182

Bourne (Inspector of Taxes) v Norwich Crematorium Ltd: 1967

Stamp J said: ‘Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. That one must construe a word or phrase in a section of an Act of Parliament with all the assistance one can from decided cases and, if you will, from the dictionary, is not in doubt; but having obtained all that assistance, one must not at the end of the day distort that which has to be construed and give it a meaning which in its context one would not think it can possibly bear.’

Stamp J
[1967] 1 WLR 691
England and Wales
Cited by:
CitedSyed v Director of Public Prosecutions Admn 13-Jan-2010
The defendant appealed by case stated against his conviction for assaulting a police officer in the execution of his duty. Three officers responded to a report of a disturbance and entered his house despite his struggle. The officers purported to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.393393

L’Oreal Sa and others v eBay International Ag and others: ChD 15 Jul 2008

In interlouctory proceedings, Ebay sought disclosure of a Tomlin settlement reached by the claimants with a co-defendant. The claimant resisted, saying that the Tomlin order was confidential.
Held: Master Gragg said: ‘on balance it must be right that the eBay Defendants should be able to inspect the confidential terms so that they may analyse the terms in the agreements and take a view about it. In coming to that conclusion I try and take full account of the submissions made to me in relation to the question of confidentiality. Of itself, confidentiality will not be sufficient; for example, it is not a sufficient ground of itself for refusing disclosure. But, nonetheless, I do take account when weighing whether or not it is right to make an order for inspection of these documents the submissions made to me in relation to confidentiality.’

Master Bragg
[2008] EWHC B13 (Ch), [2008] FSR 37
Bailii
England and Wales
Citing:
CitedApley Estates Company Limited v De Bernales and Others 1947
The parties had settled their original dispute on terms including that: ‘the plaintiffs in the said actions will not nor will any of them sue or continue to sue the said defendants in respect of any of the matters the subject matter of the said . .
CitedTomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
CitedHeaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Litigation Practice

Updated: 11 November 2021; Ref: scu.276222

Mitsui and Co Ltd v Nexen Petroleum UK Ltd: ChD 29 Apr 2005

Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where the claimant requires the missing piece of the jigsaw.’ and ‘The jurisdiction is only to be exercised if the innocent third parlies are the only practicable source of information.’
He continued: ‘The three conditions to be satisfied for the court to exercise the power to order Norwich Pharmacal relief are: i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.’ Mitsui had failed to establish this, because it could obtain the documents it wanted by way of pre-action disclosure from its intended opponent. The application failed.

Lightman J
[2005] EWHC 625 (Ch), Times 18-May-2005, [2005] 3 All ER 511
Bailii
England and Wales
Citing:
CitedNorwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
CitedP v T Limited 1997
The jurisdiction under Norwich Pharmacal is not confined to circumstances where there has been tortious wrongdoing and is now available where there has been contractual wrongdoing. . .
CitedCarlton Film Distributors Ltd v VCI Plc 2003
. .
CitedCHC Software Care v Hopkins and Wood 1993
The jurisdiction to require discovery of documents from a third party is not restricted to seeking information from an innocent third party. The third party may himself be one of the wrongdoers. . .
CitedAshworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
CitedAoot Kalmneft v Denton Wilde Sapte (A Firm) Merc 29-Oct-2001
The court ordered relief by way of disclosure against a third party: ‘In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why the . .
CitedAxa Equity and Life Assurance Plc Society Plc and others v National Westminster Bank Plc and others CA 7-May-1998
Discovery of documents from third parties. Morritt LJ said that an order might be made where the party holding the documents could be said to have involvement in terms of ‘causing or facilitating’ the wrong. . .
CitedHarrington v Polytechnic of North London 1984
There is a public interest in not involving third parties in litigation if this can be avoided. . .
CitedBlack v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
CitedMacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office.
Held: The court pointed out the distinction between ‘personal . .

Cited by:
CitedHughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
CitedSheffield Wednesday Football Club Ltd and others v Hargreaves QBD 18-Oct-2007
The defendant operated a web forum in which posters posted defamatory messages about the claimants. The claimants sought an order disclosing the contact details of the members of the forum. The owner of the forum said he had undertaken not to . .
CitedSmith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
CitedSmith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
CitedMohamed, 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 . .
CitedMohamed, 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 . .
CitedVarious Claimants v News Group Newspapers Ltd and Others ChD 12-Jul-2013
The claimants sought disclosure by the police of information relating to the phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper. They were wanting to make claims against the respondent, but . .
CitedFetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.224496

Di Placito v Slater and others: CA 19 Dec 2003

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

Lord Justice Laws Lord Justice Potter Lady Justice Arden
[2003] EWCA Civ 1863, Times 29-Jan-2004, [2004] 1 WLR 1605
Bailii
England and Wales
Citing:
CitedEronat v Tabbah CA 10-Jul-2002
. .
MentionedRe Hudson, Hudson v Hudson ChD 1966
The plaintiff’s marriage had been dissolved and her former husband was ordered to pay her maintenance at a specified rate. The husband subsequently filed evidence that he was unable to comply with that order but offered to undertake to pay one-third . .
CitedMiller and Another v Scorey and Others ChD 2-Apr-1996
Using disclosed documents in second action with similar parties may be a contempt, depending significantly upon whether any undertaking, express or implied was given. The court struck out an action where proceedings were commenced in reliance on . .
CitedBiguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
CitedWoodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
CitedAsiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
CitedEronat v Tabbah CA 10-Jul-2002
. .
CitedPurcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
CitedSiebe Gorman and Co Ltd v Pineupac Ltd 1982
The court should be expected to be reluctant to relieve a party of the consequences of a consent order. . .
CitedRopac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
CitedDermot Gerard Richard Walsh v Andre Martin Misseldine CA 29-Feb-2000
The claimant sought damages for injuries from 1989. His claim was pursued effectively, but a four-year delay ensued after 1994. He then sought to enlarge his claim greatly by introducing a lot of new issues of which the defendant’s insurers had no . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedHakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
CitedPfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
CitedPurdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .

Cited by:
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
CitedWarren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
CitedBarron and Others v Collins MEP QBD 22-Dec-2016
The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.188901

Foakes v Beer: HL 16 May 1884

Mrs Beer had obtained judgment against Dr Foakes for andpound;2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In consideration of the part payment and Dr Foakes’s undertaking to pay the balance in instalments Mrs Beer agreed not to take any proceedings on the judgment. After the whole sum had been paid, however, she sought to take proceedings on the judgment to recover interest.
Held: A promise to pay part of a debt is not good consideration in law. The House applied the rule in Pinnel’s Case that since the obligations undertaken by Dr Foakes under the agreement added nothing to his existing obligation under the judgment, he had provided no consideration for Mrs Beer’s promise not to take action on the judgment which was therefore unenforceable.
Lord Blackburn argued for the abolition of the rule in Pinnel’s case: ‘What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognize and act on the ground that prompt payment of a part of their demand may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole. Even where the debtor is perfectly solvent, and sure to pay at last, this often is so. Where the credit of the debtor is doubtful it must be more so.’

Lord Blackburn
(1884) 9 App Cas 605, [1884] UKHL 1
Bailii
England and Wales
Citing:
AppliedPinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .

Cited by:
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedCollier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
AppliedIn Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
CitedHirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .
For Examination laterRock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
CitedWilliams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.243134

Onassis and Calogeropoulos v Vergottis: HL 1968

Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.’
Lord Pearce also reminded himself of the circumstances allowing the upsetting of a judgment of a lower court, saying: ‘The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour: But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree.’
and ‘Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.’

Lord Pearce
[1968] 2 Lloyd’s Rep 403
England and Wales
Cited by:
CitedFoodco UK Llp (T/A Muffin Break) and Others v Henry Boot Developments Ltd ChD 3-Mar-2010
The claimants had been persuaded to take up leases on a service area constructed by the defendants. They said that the publicity materials had wildly exaggerated the actual number of visitors, and sought damages for fraudulent misrepresentation.
CitedEarles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
CitedIn re Mumtaz Properties Ltd; Wetton v Ahmed CA 24-May-2011
Former directors appealed against finding as to their personal liability for directors’ and other loans.
Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in . .
CitedPiper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
CitedMcintyre and Another v The Home Office QBD 30-Jan-2014
Claim for compensation for injuries allegedly suffered by the claimants as a result of a minor car accident.
Held: There was a stark contrast between the parties. The court accepted the version of the events told by the defendants, and the . .
CitedNuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.402569

Bonnard v Perryman: CA 2 Jan 1891

Although the courts possessed a jurisdiction, ‘in all but exceptional cases’, they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that that defence would fail. Where the defendant contends that the words complained of are true and swears that he will plead and seek to prove the defence of justification, the court should not grant an interlocutory injunction unless, exceptionally, it is satisfied that the defence is one which cannot succeed. The plaintiff must demonstrate that ‘it is clear that (the) alleged libel is untrue.’
Lord Coleridge CJ said that there was a particular need not to restrict the right of free speech in libel cases by interfering before the final determination of the matter by a jury otherwise than in a clear case of an untrue libel, saying: ‘But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.
In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.’

Lord Coleridge CJ, Lord Esher MR, Lindley, Bowen and Lopes LJJ
[1891] 2 Ch 269
England and Wales
Citing:
Appeal fromBonnard v Perryman QBD 1891
The libel in issue was a very damaging one. Unless it could be justified at the trial it was one in which a jury would give the plaintiff ‘very serious damages’. The court was asked to grant an interlocutory injunction to restrain publication.
ApprovedWilliam Coulson and Sons v James Coulson and Co CA 1887
Lord Esher MR said: ‘It could not be denied that the court had jurisdiction to grant an interim injunction before trial. It was, however, a most delicate jurisdiction to exercise, because, though Fox’s Act only applied to indictments and . .

Cited by:
CitedCream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
CitedHubbard v Pitt CA 1976
Protesters handed out leaflets and carried posters outside the plaintiff’s estate agency. He claimed in trespass over the public footpath outside his premises. The defendants appealed the grant of an interlocutory injunction to prevent their . .
CitedTillery Valley Foods v Channel Four Television, Shine Limited ChD 18-May-2004
The claimant sought an injunction to restrain the defendants broadcasting a film, claiming that it contained confidential material. A journalist working undercover sought to reveal what he said were unhealthy practices in the claimant’s meat . .
CitedService Corporation International plc v Channel Four Television ChD 1999
The court considered an application for an interlocutory injunction to restrain a broadcast, based on copyright. The defendant argued that this was merely an attempt to circumvent difficulties in a defamation action.
Held: Where an interim . .
CitedGreene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
CitedFraser v Evans CA 1969
The law of confidence is based on the moral principles of loyalty and fair dealing. An injunction was sought to restrain an intended publication: ‘The court will not restrain the publication of an article, even though it is defamatory, when the . .
RestatedHerbage v Pressdram Ltd CA 1984
There was a publication of articles which referred to convictions which were spent under the 1974 Act. The court restated the principle in Bonnard v Perryman: ‘These principles have evolved because of the value the court has placed on freedom of . .
CitedKhashoggi v IPC Magazines Ltd CA 1986
The plaintiff sought to restrain the publication of an article. The defendants asserted that they would justify what they said at trial by reference to a Polly Peck defence, as to which: ‘I cannot see why the Bonnard v Perryman principle should not . .
CitedHerbage v Times Newspapers Ltd CA 30-Apr-1981
The principles in American Cyanamid did not affect the rule in Bonnard v Perryman. Sir Denys Buckley saiod: ‘the question what meaning the words complained of bore was primarily one for the jury. Suppose the words bore the second meaning alleged and . .
CitedHolley, SD and R Trading Limited, Henry Ansbacher and Co Limited, Ansbacher (Jersey) Limited v Smith CA 4-Dec-1997
The motive for a threatened publication, was not relevant, when considering whether to restrain publication beforehand. Sir Christopher Slade said: ‘I accept that the court may be left with a residual discretion to decline to apply the rule in . .
CitedLord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
CitedBoehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
CitedBestobell v Bigg 1975
The rule in Bonnard preventing prior restraint in defamation proceedings applies also in the context of an allegation of malicious falsehood. . .
CitedGulf Oil (Great Britain) Limited v Page CA 1987
The plaintiff had contracted exclusively to supply to the defendants owners of petrol stations. On arrears arising, the plaintiff discontinued deliveries save on cash on delivery and direct debit terms. The defendants obtained supplies from another . .
CitedRST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
CitedCaborn-Waterfield v Gold and Others QBD 11-Mar-2013
The defendants requested a preliminary ruling that the words complained of in the claimant’s action were not capable of bearing a defamatory meaning.
Held: Some of the pleaded meanings were not supported, but others were clearly defamatory, . .
CitedVaughan v London Borough of Lewisham and Others QBD 11-Apr-2013
The claimant sought an order to restrain anticipated defamatory comments and evidence to be given to an employment tribunal.
Held: It could not be said as the claimant asserted that dfeences were bound to fail, and no determination should be . .
CitedHannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
CitedHeythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
CitedRoberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.182936

Mezvinsky and Another v Associated Newspapers Ltd: ChD 25 May 2018

Choice of Division and Business Lists

Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. The defendants now sought the transfer of the case to the Queens Bench Division.
Held: There is concurrent jurisdiction between the two divisions for issuing a privacy claim. The creation of the Media and Communications List was not under the CPR: it is a means by which work that is already within the Queen’s Bench Division is allocated for its proper performance. The creation of the M and CL has no direct extra-divisional effect.’ The application was refused. It had been made in part on mistaken assumptions, and: ‘There is no basis for concluding that the Queen’s Bench Division M and CL is the appropriate, or the more appropriate, venue for this claim. Both the Business List (ChD) and the Queen’s Bench M and CL are appropriate. There are no good reasons to transfer the claim and disturb the legitimate choice made by the claimants at the point the claim was issued.’

Marsh CM
[2018] EWHC 1261 (Ch)
Bailii
Senior Courts Act 1981, Civil Procedure Rules 30
England and Wales
Citing:
CitedNATL Amusements (UK) Ltd and Others v White City (Shepherds Bush) Ltd Partnership and Another TCC 16-Oct-2009
Application for transfer of claim from QBD to TCC. Akenhead J considered an application to transfer a claim from the Chancery Division to the Technology and Construction Court. After reviewing the authorities, he said: ‘It is probably unnecessary to . .
CitedAppleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedMurray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
CitedRocknroll v News Group Newspapers Ltd ChD 17-Jan-2013
The claimant sought an order to restrain the defendant from publishing embarrassing photographs taken at a private party. He had taken an assignment of the copyright from the photographer.
Held: The court considered whether the extent to which . .
CitedGulati and Others v MGN Limited ChD 21-May-2015
The claimants each claimed that their mobile phones had been hacked by or on behalf of the defendant newspaper group. The claims had now in substance been admitted, and the court set out to assess the damages (and aggravated damages) to be paid.
CitedAppleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
CitedCRE v Justis Publishing Ltd 20-Mar-2017
The defendant company published case law. The claimant’s case had been anonymised, but the defendant published a version of the judgment from which it was possible to identify him (or her). An order had been made to transfer the case to the County . .
CitedAli and Another v Channel 5 Broadcast Ltd ChD 22-Feb-2018
The claimants said that a filming of their eviction from property was an invasion of their privacy.
Held: The Claimants did have a reasonable expectation of privacy in respect of the information included in the Programme about which they . .

Lists of cited by and citing cases may be incomplete.

Media, Intellectual Property, Information, Torts – Other, Human Rights, Litigation Practice

Updated: 10 November 2021; Ref: scu.616902

Cutts v Head and Another: CA 7 Dec 1983

There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining that the judge had failed to take into account an offer of settlement made by him before trial.
Held: The principles of Calderbank should be of general application, and not just within matrimonial proceedings.
Oliver LJ discussed the attempt to apply the without prejudice rule: ‘That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151, 156, be encouraged fully and frankly to put their cards on the table. The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’
The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence ‘without prejudice’ to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.’
and ‘As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused can only encourage settlement whilst, on the other hand, it is hard to imagine anything more calculated to encourage obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever may be offered to him even if it is as much as or more than everything to which he is entitled in the action.’

Oliver LJ, Fox LJ
[1984] Ch 290, [1983] EWCA Civ 8, [1984] 2 WLR 349, [1984] 1 All ER 597
Bailii
England and Wales
Citing:
CitedCalderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
CitedScott Paper Co v Drayton Paper Works Ltd 1927
Parties to litigation should ‘be encouraged fully and frankly to put their cards on the table.’ . .
CitedWalker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
CitedHoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
CitedIn Re Daintrey, Ex Parte Holt QBD 1893
The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of . .
CitedStotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
CitedTomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
CitedMcDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
CitedPotter v Potter FD 1982
The court considered the admissibility of without prejudice correspondence on costs decisions. . .
CitedJones v Foxall CA 27-Mar-1852
Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: ‘I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am . .
CitedTransmountana Armadora v Atlantic Shipping 1978
Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three . .
CitedArchital v Boot Construction 1981
. .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedComputer Machinery v Drescher ChD 1983
Sir Robert Megarry VC said: ‘For reasons that will appear, I think that I should pause in my recital of the facts in order to say something about these two cases. For a long while it has been settled law that if letters written ‘without prejudice’ . .
CitedIn re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
CitedRabin v Mendoza and Co CA 1954
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be . .

Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
CitedNorris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
CitedButcher 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 . .
CitedPrudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
CitedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
CitedCrouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedBradford and Bingley Plc v Rashid CA 22-Jul-2005
The claimant sought recovery of a shortfall having sold the defendant’s house for a sum insufficient to clear the mortgage debt, and produced two letters which they claimed acknowledged the debt and restarted the limitation period running. The . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
FollowedDaks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
CitedFramlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
CitedOfulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedBrodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedBerkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.182471

CTB v News Group Newspapers Ltd and Thomas (2): QBD 23 May 2011

ctb_ngn2QBD11

The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. Additionally the claimant said that given that the defendant claimed to have clean hands in the matter, it should provide disclosure of dicuments which might support or undermine that claim.
Held: The applications failed. That the defendant still wanted to pubish the story was itself evidence that there remained some privacy to protect, and: ‘the right question for me to ask . . is whether there is a solid reason why the Claimant’s identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. The answer is as yet in the negative. They would be engulfed in a cruel and destructive media frenzy. Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so.’
The defendant having reduced its ‘clean hands’ claim to one of there being no evidence to contradict it, detailed disclosure remained unnecessary at this stage. The court also bore in mind that such a search might reveal criminal attempts to undermine the court order, and this would require consideration of the laws against requiring self-incrimination.
Eady considered the argument that the information was already in the public domain: ‘one reason why it can be important to distinguish between the was the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth of falsity of the allegations in question can often be irrelevant: see e.g. McKennitt v Ash [2008] QB 73 . . It is fairly obvious that wall-to-wall excoriation in national newspapers . . is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment . . For so long as the court is in a position to prevent some of that intrusion and distress, depending on individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down.’

Eady J
[2011] EWHC 1326 (QB)
Bailii
Citing:
CitedCobra Golf Inc and Another v Rata and Others ChD 11-Oct-1996
An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact . .
CitedDendron Gmbh and others v Regents of University of California and Another PatC 23-Mar-2004
The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See AlsoCTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Cited by:
CitedCTB v News Group Newspapers Ltd and Another (3) QBD 23-May-2011
ctb_ngn4QBD11
The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. . .
CitedGoodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
CitedHutcheson (Formerly Known As ‘KGM’) v News Group Newspapers Ltd and Others CA 19-Jul-2011
The claimant appealed against the refusal of a privacy order, protecting his identity in his claim.
Held: The appeal was refused. That Article 8 was ‘engaged’ was not conclusive of the question whether the claimant enjoyed a reasonable . .
CitedIn re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
CitedPJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Litigation Practice

Updated: 10 November 2021; Ref: scu.440085

Berg v IML London Ltd: 2002

A judge should recuse himself in a civil case only if, subjectively, he considered that the knowledge he acquired of privileged communications disabled him from fairly continuing with the case or, objectively, a fair-minded and informed observer would conclude that there was a real possibility or a real danger that there could not be or would not be a fair trial.
Stanley Burnton J said: ‘The procedure of the court would be greatly hampered and the cost of litigation greatly increased if the court were too easily to come to the conclusion that the viewing of prejudicial irrelevant material necessarily disabled the court from continuing to hear the action. Prior to [the] Medicaments [case] it was not the case that the court would necessarily come to that conclusion as I have already indicated. In my judgment Medicaments has affected the test to be applied in such circumstances, but the effect is not as substantial as suggested by the defendant in this case. The Court of Appeal in the Medicaments case described the effect of the change in law which it was finding and did not regard that change as a substantial change. It referred to a modest adjustment of the test in Goff [1993] AC 646 . . Where a question such as that which has arisen in this case arises, in my judgment there are two aspects to the decision of the court whose recusation is sought. The first question is whether subjectively the judge considers that he is disabled from fairly continuing with the case. If he decides that he is so disabled then that normally is the end of the matter. The matter must be transferred to another judge and it can be only in the rarest cases that an appeal court would intervene to order for the hearing to continue before that judge. The decision is often said to be one within the discretion of the court, but essentially the decision is a subjective decision. That, however, is not the end of the matter.
As I have already indicated, there is a modified test as laid down in the Medicaments, which is an objective test to be applied. There are circumstances, in my judgment rare circumstances, in which whatever the subjective feeling of the judge in question, he cannot continue with the case without there being a real possibility or a real danger of there being seen to be, by a fair-minded and informed observer, an unfair trial.
The fair-minded observer will appreciate that the judge is not partial to either party, will appreciate that when the judge expresses his views as to whether or not he can continue, he is expressing those views honestly and unaffected by any connection with either party.’

Stanley Burnton J
[2002] 1 WLR 3271, [2002] All ER (D) 46, [2002] 4 All ER 87
Cited by:
CitedGarratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
CitedIn re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.464845

C Plc and W v P and Secretary of State for the Home Office and the Attorney General: ChD 26 May 2006

cplc_pChD2006

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 images of children were found. The searching officer asked the court for directions as to what to do.
Held: The privilege against self incrimination applied to statements and written material made or created by the defendant under compulsion. It did not apply to self-standing evidence such as the material in this case.

Evans-Lombe J
Times 08-Jun-2006, [2006] EWHC 1226 (Ch), [2007] 3 WLR 437
Bailii
Civil Procedure Act 1997 7, Civil Evidence Act 1968 14, Police and Criminal Evidence Act 1984 78
Citing:
CitedRank Film Distributors v Video Information Centre HL 1-Mar-1981
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 . .
CitedRegina v Hertfordshire County Council ex parte Green Environmental Industries Limited, Moynihan CA 9-Oct-1997
There was no protection against self-incrimination where information was properly required by the Waste Regulation Authority to carry out its duties. . .
CitedO Ltd v Z ChD 23-Feb-2005
The court was asked whether a search under a court order of a former employee’s computer for materials alleged to have been taken, which discovered material possession of which itself was a crime, infringed the defendant’s rights against self . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedRio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) HL 1977
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the . .
CitedWarman International Ltd and Others v Envirotech Australia Pty Ltd and Others 1986
(Australia High Court) The court considered an application that the privilege against self incrimination be allowed to prevent a requirement to produce documents at court under a sub-poena: ‘Production is to the Court. Unless and until the contents . .
CitedDownie and Others v Coe and Others (a Firm) CA 28-Nov-1997
A claim to a right of a witness against self incrimination must be made by that person in person on oath though substantiation elsewhere. . .
CitedTriplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd 1939
A company is to have the benefit of protection against self incrimination just as much as an individual. A court is not bound without more, by a claim to the privilege by a party to litigation. . .
CitedAttorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .
CitedRegina v Kearns CACD 22-Mar-2002
The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide . .
CitedRegina v Khan (Attorney-General’s Reference No 7 of 2000); Same v Saunders (AG Ref 10 of 2000); Same v Paul (AG Ref 9 of 2000); Same v Wakelin (AG Ref 8 of 2000) CACD 15-Jun-2000
Robbery committed on public transport, against young persons, will lead to a custodial sentence, save in wholly exceptional circumstances. There is a need to provide deterrence, for what has become a common crime. Sentences of between twelve and . .
CitedThompson Newspapers Ltd v Director of Investigation and Research 1990
(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination.
Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, . .
CitedX and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
CitedA T and T Istel Ltd v Tully HL 9-Sep-1992
The second plaintff had agreed to supply computer systems to a health authority. New owners of the company discovered allegations that the contract had been operated fraudulently. An order had been obtained for production of documents, but the order . .
CitedKay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
CitedRegina v Boyes 27-May-1861
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he . .
CitedRe Arrows Ltd No 4 HL 1995
The Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 on the Director of the Serious Fraud Office undertaking that the transcripts would . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedOsman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
CitedL v United Kingdom ECHR 2000
The court coinsidered a claim for the privilege against self-incrimination: ‘As held in Saunders v. United Kingdom . . the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and . .

Cited by:
AppliedMalik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
CitedRegina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.242224

Gouriet v Union of Post Office Workers: HL 26 Jul 1977

The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area.
Lord Diplock said: ‘Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used . . Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights. The only kind of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event . . But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not of anyone else.’
As to the right to bring private prosecutions, they are ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.’
Lord Wilberforce noted that the right to bring a private prosecution was ‘a valuable constitutional safeguard against inertia or partiality on the part of authority.’ and ‘That it is the exclusive right of the Attorney-General to represent the public interest – even where individuals might be interested in a larger view of the matter – is not technical, not procedural, not fictional. It is constitutional.’

Lord Wilberforce, Lord Diplock
[1978] AC 435, [1977] UKHL 5, [1977] 3 All ER 70
Bailii
Supreme Court of Judicature (Consolidation) Act 1925, Post Office Act 1953 58(1) 68, Telegraph Act 1863 45
England and Wales
Citing:
CitedAttorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others 9-Jul-1690
The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King’s name is only made use of by the form of the . .
CitedShore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
CitedEx Parte Newton 19-Apr-1855
The Attorney General having refused his fiat for a writ of error to a defendant convicted of a misdemeanour Held, that in a proper case, the fiat was due ex debito justitia; but that the Attorney General was to determine, on his owri responsibility, . .
CitedLondon County Council v Attorney General 1901
Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the . .
CitedTriefus and Co Ltd v Post Office CA 1957
The plaintiff sought damages after the defendant lost two mail packets.
Held: Acceptance of a postal packet by the Post Office for transmission to the addressee gives rise to no contractual rights. The court analysed the history of legislation . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .

Cited by:
CitedAttorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
CitedLegal and General Assurance Society Ltd v CCA Stationery Ltd ChD 12-Dec-2003
The claimant had managed a pension scheme for the respondent company. It now challenged a finding of maladministration of the scheme, with respect to the methods of calculation of discounts applicable to those leaving the scheme.
Held: Since . .
CitedStoke-On-Trent City Council v B and Q (Retail) Ltd HL 1984
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a . .
CitedIn Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
ConsideredMeadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
CitedCabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
CitedIn Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedJones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
CitedBrown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
CitedEwing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
CitedOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedFeetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
CitedRolls-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 . .
CitedRolls-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 . .
CitedScopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
CitedRollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
CitedGujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .

Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.181965

O’Reilly v Mackman: HL 1982

Remission of Sentence is a Privilege not a Right

The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time limits.
Held: The forfeiture of remission for a prisoner was, as a matter of law, not a loss of liberty but a loss of a privilege, the loss of right protected by public law. Any proceedings to enforce a public duty should not be by way of ordinary action.
Lord Diplock said: ‘it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities . . I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.’ The purpose of the requirement was to protect the public administration against false, frivolous or tardy challenges to official action: ‘The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision’. An advantage of O.53 was that the court had an opportunity to exercise its discretion at the outset of the proceedings rather than would have happened at that time in proceedings begun by originating summons at the end of the proceedings. This was an important protection in the interests of good administration and for third parties who may be indirectly affected by the proceedings: ‘Unless such an action can be struck out summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in O.53 was directed would be defeated.’ Though a respondent should not normally be cross examined as to its affidavit, nevertheless, ‘ . . leave to cross-examination should be granted where the interests of justice so require.’ The grant of leave to cross-examine deponents is goverened by the same principles in applications for judicial review as in actions commenced by originating summonses.

Lord Diplock, Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brightman
[1983] 2 AC 237, [1982] 3 WLR 1096, [1982] 3 All ER 1124, [1983] UKHL 1
Bailii
RSC O53
England and Wales
Citing:
ApprovedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .

Cited by:
AppliedGillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
AppliedRegina v City of Westminster ex parte Mbayi Admn 15-Jul-1997
The applicant sought review of the decision of the respondent that she had refused accommodation. She wanted to assert that they had failed to take account of her medical needs.
Held: The application had not proceeded at a proper case, but the . .
CitedSD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
AppliedCocks v Thanet District Council HL 25-Nov-1981
The applicant had been given temporary accomodation under the Act. He sought to enforce the obligation on the respondent to house him permanently by an action in the county court. The authority said the action should have been by judicial review. . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedClark 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 . .
CitedRoy v Kensington and Chelsea and Westminster Family Practitioner Committee HL 6-Feb-1992
The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be . .
CitedMercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
CitedSteed v Secretary of State for the Home Department HL 26-May-2000
The claimant surrendered guns and ammunition under the 1997 Act, and was due to be compensated. His claim was not settled, and he commenced an action in the County Court for the sums claimed. The defendant denied any duty to pay up within a . .
MentionedQRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
AppliedKing v East Ayrshire Council IHCS 3-Nov-1997
An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedBubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Prisons

Leading Case

Updated: 10 November 2021; Ref: scu.182909

F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another: ChD 14 Jul 2011

The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the judgment to be handed down. It was not the function of a draft judgment to provide an opportunity for the parties to settle. Nor was it appropriate to give a partial judgment without the facts which would allow it to be understood. The defendants were perhaps unnecessarily concerned at the risk of an appeal.

Sales J
[2011] EWHC 1851 (Ch)
Bailii
Limited Liability Partnerships Act 2000, Companies Act 1985
England and Wales
Citing:
CitedPrudential Assurance Company Ltd v McBains Cooper (A Firm) and Others CA 23-May-2000
A judge who had submitted a draft judgment to the parties for comment before publishing a final version, was entitled to go ahead and publish his judgment notwithstanding that the parties had reached a settlement after seeing the draft. The judge . .
CitedLiverpool Roman Catholic Archdiocesan Trust v David Goldberg QC (No 3) ChD 6-Jul-2001
Where parties settled a matter after the draft of the judgment had been delivered to them, and the terms of the settlement required the non-publication of the judgment, the judge nevertheless retained the power to publish that judgment.
Held: . .
CitedBoughtwood v Oak Investment Partners XII Ltd CA 28-Jan-2010
The claimant had alleged unfair prejudice in the conduct of the business. The court considered an appeal on the valuation of the shares ordered to be purchased. . .

Cited by:
See AlsoF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
See AlsoF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another ChD 28-Oct-2011
. .
See AlsoF and C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another CA 22-Jun-2012
The parties, former partners in a limited liability partnership providing investment funds management, had been involved in protracted and bitter litigation. The appellant now challenged the award of indemnity costs. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 10 November 2021; Ref: scu.441823

Grepe v Loam; Bulteel v Grepe: CA 1887

The court was asked for an order restricting the right of a group of litigants be restrained from beginning further court actions without first obtaining the court’s consent, they having been accused of issuing vexatious proceedings.
Held: The Court has the power to make an order restricting the right of a particular person to issue proceedings without the prior consent of the court, where it finds that he has made repeated and frivolous applications in an attempt to challenge an order already made between the same parties. The order stipulated that: ‘That the said Applicants or any of them be not allowed to make any further applications in these actions or either of them to this Court or to the Court below without the leave of this Court being first obtained. And if notice of any such application shall be given without such leave being obtained, the Respondents shall not be required to appear upon such application, and it shall be dismissed without being heard.’

(1887) 37 ChD 168, (1887) 75 LJ Ch 435, (1887) 58 LT 100
England and Wales
Cited by:
CitedHM Attorney-General v Ebert Admn 21-Sep-2001
The defendant had instituted over 80 fruitless actions over years. He had been made subject to a vexatious litigant order, but the Attorney General now requested additional injunctive relief. This was a very extreme instance of extreme litigation. . .
CitedPerotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
CitedDenzil Williams v Jean Robertson (Wrongly Described As Robinson) CA 22-Jul-1999
The claimant had sought orders alleging a nuisance caused by his neighbour’s fir tree. He appealed a refusal of his claim which had been based upon the absence of any evidence to support it. Because of the long history of complaints between the . .
CitedCourtman v Ludlam and Another; In re Ludlam (Bankrupts) ChD 6-Aug-2009
The applicant trustee in bankruptcy sought an extended civil restraint order against the respondents, saying that they had made unmeritorious claims in the proceedings.
Held: The rules required there to be shown that person had ‘persistently . .
CitedK v K FD 21-Apr-2015
F and M had been involved in protracted and bitter litigation on their divorce. They had come each to seek the committal of the other for alleged perjury and otherwise, but those applications were not being pursued.
Held: The father’s . .
CitedBhamjee v Forsdick and Others (No 2) CA 25-Jul-2003
The Court set out the range of remedies available to protect court processes from abuse by litigants who persist in making applications totally devoid of merit. The courts are facing very serious contemporary problems created by the activities of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.183337

Brennan and others v Sunderland City Council Unison GMB: EAT 16 Dec 2008

No Waiver for disclosure of Advice

EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and therefore privilege was waived. The Tribunal rejected the application and the EAT held that they were right to do so.
Consideration of the operation of waiver principles.
Elias J P discussed the question fundamental to whether there had been a waiver: The fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?
Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the parties’ case? As Waller LJ observed in the Dunlop Slazenger case [2003] EWCA Civ 901. The principles are not altogether easy to discern, partly perhaps because of the vagueness of the language adopted – for example, sometimes reliance and deployment are used as separate terms and sometimes they appear to mean much the same thing – and partly because the cases are necessarily fact sensitive . .
66. Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established. In that context something more than the effect of the advice must be disclosed before any question of waiver can arise.
However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance . .’

Elias J P
[2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479
Bailii
England and Wales
Citing:
CitedWilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
CitedUnison GMB v Brennan and others EAT 19-Mar-2008
EAT Jurisdictional Points
Sex discrimination
Can an employment tribunal make a declaration that the term of a collective agreement is void, pursuant to section 77 of the Sex Discrimination Act, at the . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
CitedNea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
CitedDunlop Slazenger International Ltd v Joe Bloggs Sports Ltd CA 11-Jun-2003
Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom . .
CitedBennett v Chief Executive Officer of the Australian Customs Service 25-Aug-2004
Austlii (Federal Court of Australia) EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and . .
CitedExpandable Ltd and Another v Rubin CA 11-Feb-2008
The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional . .
CitedMann v Carnell 21-Dec-1999
Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – . .
CitedGE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
CitedInfields Ltd v P Rosen and Son CA 1938
Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: ‘In my judgment, the same principle applies here. All that the deponent was doing was saying: ‘Well, I am asking the court . .
CitedGovernment Trading Corporation v Tate and Lyle Industries Ltd CA 24-Oct-1984
Reference was made to information derived from Iranian lawyers. The solicitor in an affirmation had set out his understanding of Iranian law on the incorporation of a Government Trading Corporation in Iran and stated that his information had been . .
CitedRegina v Secretary of State for Transport ex-parte Factortame and Others CA 1988
The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly . .
CitedUniversity of Southampton v Dr C K Kelly EAT 14-Nov-2005
EAT The respondent had stated in its response to the complaint of unfair dismissal that it had realised that it would be unlawful to continue to employ the claimant after having taken legal advice. The claimant . .

Cited by:
CitedRe D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
AppliedThe National Crime Agency v Perry and Others QBD 12-Nov-2014
nca_perryQBD201411
The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an . .
Appeal fromCouncil of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.278812

Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others: SC 27 Oct 2010

The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding circumstances as an aid to construction of an agreement which results from the negotiations, should be admissible by way of exception to the without prejudice rule.
Held: The question should be answered ‘Yes’, and the appeal allowed. The application of the without prejudice rule is now wider than it had been, and its boundaries should not be whittled away too readily. However, ‘No sensible line can be drawn between admitting without prejudice communications in order to resolve the issue of whether they have resulted in a concluded compromise agreement and admitting them in order to resolve the issue of what that agreement was.’ Lord Clarke could see ‘no reason why the ordinary principles governing the interpretation of a settlement agreement should be any different regardless of whether the negotiations which led to it were without prejudice. The language should be construed in the same way and the question . . should be the same, namely what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.’

Lord Phillips, President, Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 44, [2011] 1 All ER (Comm) 1, [2010] 3 WLR 1424, [2010] 4 All ER 1011, [2011] 1 Lloyd’s Rep 96, UKSC 2010/0039
Bailii, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At first InstanceOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others ComC 29-Jul-2009
The parties disputed the admissibility in a dispute about the effect of a settlement agreement of evidence of without prejudice exchanges between the parties before it was signed. . .
Appeal FromOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedWalker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedUnilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedOfulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
CitedBritoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .

Cited by:
CitedBerkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others ChD 1-May-2020
Application by the Claimants to strike out parts of the Defence as an abuse of process and an application by the Defendants to amend their Defence. However, both applications turn on the question whether certain facts on which the Defendants seek to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 November 2021; Ref: scu.425582

Pickstone v Freemans Plc: HL 30 Jun 1988

The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim failed.
Held: The claim was not disbarred in this way. A reference to proceedings in Parliament was used to establish the intention behind the Act. Where regulations had been made in order to give effect to a Community obligation, there was an obligation to apply a purposive construction so as to give effect to the legislative intention and implement the Community obligation. The greater flexibility available to the court in applying a purposive construction to legislation designed to give effect to the United Kingdom’s Treaty obligations to the Community enables the court, where necessary, to supply by implication words appropriate to comply with those obligations. The explanatory note attached to a statutory instrument, although it was not of course part of the instrument, could be used to identify the mischief which it was attempting to remedy.

Lord Oliver of Aylmerton
[1989] AC 66, [1988] 2 All ER 803, [1988] 3 WLR 265, [1988] UKHL 2, [1988] 3 CMLR 221, [1988] ICR 697, [1988] IRLR 357
Hamlyn, Bailii
Equal Pay Act 1970 1(2), EEC Treaty 119, EC Council Directive 75/117
England and Wales
Citing:
CitedAinsworth v Glass Tubes Components Ltd EAT 1977
In an equal pay claim, it is for the applicant to choose the man with whom she wishes to compare herself. . .
CitedGarland v British Rail Engineering Ltd HL 19-Jan-1981
There was a dispute between an employee of the company, a subsidiary of the British Railways Board, a body created by the Transport Act 1962 to manage the railways in the united kingdom, and her employer concerning discrimination alleged to be . .
CitedGarland v British Rail Engineering Ltd ECJ 9-Feb-1982
garland_breECJ1982
The fact that an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement constitutes discrimination within the meaning of article 119 against former female . .
CitedCommission of the European Communities v United Kingdom of Great Britain and Northern Ireland ECJ 6-Jul-1982
The general scheme and content of Directive 75/117, whose essential purpose is to implement the principle of equal pay for men and women, indicate that it is the responsibility of the member states to guarantee the right to receive equal pay for . .
CitedDuke v GEC Reliance Systems Limited HL 2-Jan-1988
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination.
Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the . .
MentionedBulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .
CitedMary Murphy and others v An Bord Telecom Eireann ECJ 4-Feb-1988
Article 119 of the EEC Treaty, which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of community . .
Citedvon Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
sabineECJ1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
CitedCommission of the European Communities v Kingdom of Belgium ECJ 6-May-1980
Europa It is essential that each member state should implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek for the benefit of traders . .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) CA 1987
. .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
MentionedJ P Jenkins v Kingsgate (Clothing Productions) Ltd EAT 19-Jun-1981
The claimant worked part time. She said that she should have been paid at the same rate as her male full time equivalents, the failure being incompatible with her rights under Article 119.
Held: The scope of Article 119 EEC covers not only . .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
MentionedJ P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
CitedMacarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .
CitedJohnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
CitedO’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .
CitedRegina v Maurice Donald Henn and John Frederick Ernest Darby ECJ 14-Dec-1979
Europa Article 30 of the EEC treaty applies also to prohibitions on imports inasmuch as they are the most extreme form of restriction. The expression used in article 30 must therefore be understood as being the . .
CitedHenn and Darby v Director of Public Prosecutions HL 1980
The House referred to the ECJ questions concerning the impact of Article 30 of the Treaty of Rome upon a prohibition against the importation of pornographic articles.
Lord Diplock said: ‘The European Court, in contrast to English courts, . .
CitedSusan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited ECJ 11-Mar-1981
Europa A contribution to a retirement benefits scheme which is paid by an employer on behalf of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that . .
CitedGisela Rummler v Dato-Druck ECJ 1-Jul-1986
In general Directive 75/117 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women does not prohibit the use, in a job classification system as referred to in the second . .

Cited by:
AppliedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
AppliedLitster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
CitedM Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedParkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.182419

Re B (Litigants In Person: Timely Service of Documents): FD 30 Sep 2016

Respect for litigants in person – proper service

The court considered the situation where in an international child abduction application, papers were served at the door of the court on a party who was unrepresented, and who had little English.
Held: This was plainly wrong. In such cases it was vital to compky with the Practice Directio as to the timely service of documents. The Father should have been given an adjournment: ‘These are minimum service requirements that should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service.’
Peter Jackson J said: ‘ the right to a fair trial includes the right to know the case one has to meet. Court hearings are already difficult for LIPs, but many, being inexperienced, are hesitant to complain about matters such as late service. In child abduction cases, the applicant is entitled to unconditional legal aid while the respondent is only entitled to means and merits-based legal aid. In consequence, it is common for the court to be faced with an applicant, appropriately represented by specialist solicitors and counsel, while the respondent has no legal advice or representation at all and in many cases cannot speak English.’

Peter Jackson J
[2016] EWHC 2365 (Fam)
Bailii
England and Wales
Citing:
CitedIn re K (A Child) CA 25-Nov-2010
F brought proceedings here to seek the return of the child K to Poland from where she had been removed by M. F appealed against refusal of an order for K’s return, citing F’s delay.
Held: The appeal succeeded. The judge had not allowed for F’s . .
CitedPH v AH FD 9-May-2016
In this action for the return of a child alleged to have been removed to this country, Holman J dicussed the inequality of the availability of legal aid to the parties: ‘Let me say at once that if the mother had been present today, the fact that she . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 09 November 2021; Ref: scu.569861

In re Racal Communications Ltd; In Re a Company: HL 3 Jul 1980

Court of Appeal’s powers limited to those Given

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review: ‘There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.’
Lord Diplock said: ‘The break-through made by Anisminic . . was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.’ But there was: ‘no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic . . ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.’

Lord Diplock, Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Scarman
[1981] AC 374, [1980] UKHL 5, [1980] 2 All ER 634, [1980] 3 WLR 181
Bailii
Supreme Court Act 1981 15, Companies Act 1948 441
England and Wales
Citing:
CitedRegina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Majority OverruledPearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
CitedDeighton v Cockle CA 2-Dec-1911
Where, an order haying been obtained for judgment under Order xiv., judgment is not signed until more than twelve months afterwards, the case does not come within Order lxiv., r. 13, and therefore it is not necessary that the notice of intention to . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Cited by:
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
CitedG v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
AppliedWestminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
CitedRegina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
CitedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
CitedRegina v Manchester Crown Court ex parte Williams and Simpson 1990
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review. . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedEvans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
CitedRegina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.182917

Tiverton Estates Ltd v Wearwell Ltd: CA 1975

“Subject to Contract” not to be diluted

‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in negotiation until a formal contract is executed’ It was vital that the meaning and effect of the phrase must not be diluted. As to the required memorandum, it must contain a recognition of the existence of the prior contract and must state its terms.
Lord Denning MR said: ‘These courts are masters of their own procedure and can do what is right even though it is not contained in the rules.’
Stamp LJ said that a memorandum must, to satisfy the section, recognise the contract.

Lord Denning MR, Stamp LJ, Scarman LJ
[1975] Ch 146
Law of Property Act 1925 40
England and Wales
Citing:
ApprovedClearbrook Property Holdings Limited v Verrier ChD 1974
The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff’s claim for . .
IncorrectLaw v Jones 1974
A ‘subject to contract’ document might be evidence of an antecedent or oral contract and satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the . .

Cited by:
CitedCarlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
CitedIrani v Irani and others ChD 24-Jul-2006
The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the . .
CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
CitedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.183017

Craig v Kanssen: CA 1943

There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it aside without the need for an appeal. A person who is affected by an order of the Court which can properly be described as a nullity, is entitled ex debito justitiae to have it set aside. There is an inherent jurisdiction to set aside a determination made where there has been a failure to observe the principle that a person against whom a charge or claim is made must be given a reasonable opportunity of appearing and presenting his or her case.

Lord Greene MR
[1943] 1 KB 256, [1943] 1 All ER 108
England and Wales
Cited by:
CitedRegina v Lord Chancellor and others ex parte Riniker CA 28-Feb-1997
The applicant sought judicial review of a refusal of her request that a judgment of the Court of Appeal should not be published.
Held: The applicants complaints were not well founded. ‘Her attempt to restrain publication of the Court of Appeal . .
CriticisedIn re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Obiter remarks criticisedStrachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.227950

Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4): CA 7 Aug 2002

The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon the Bingham report, and they sought disclosure of documents provided to the Enquiry. They appealed findings that the actual respondents to the application did not have possession of the documents sought. The Treasury cross-appealed an order not requiring the claimant to specify the documents sought, saying that the threshold condition under the rules had not been met.
Held: It was not necessary to show that it was more likely than not that the documents would be of assistance. The tests were to be applied to the class of documents, and not each document in turn. Appeals dismissed. ”likely’ [within the rules] does not carry any necessary connotation of ‘more probable than not’. It is a word which takes its meaning from context. And where the context is a jurisdictional threshold to the exercise of a discretionary power, there may be good reason to suppose that the legislature – or the rule-making body, as the case may be – intended a modest threshold of probability.’

The Master of The Rolls, Lord Justice Chadwick And Lord Justice Keene
Times 04-Oct-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1182, [2003] 1 WLR 210, [2002] 4 All ER 881, [2003] CP Rep 9, [2003] CPLR 181
Bailii
Civil Procedure Rules 31.17(3)(a)
England and Wales
Citing:
CitedAmerican Home Products Corporation, Professor Roy Calne v Novartis Pharmaceuticals UK Limited, Novartis Pharma AG CA 27-Jul-2000
The invention was a second medical use for a known drug rapamycin, which was found to have an immuno-suppressive effect. The court asked whether a claim to rapamycin should be construed to include derivatives.
Held: A person skilled in the art . .

Cited by:
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedFlood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
CitedClifford v NGN Ltd and Mulcaire ChD 3-Feb-2010
There are three steps in every case where a party seeks disclosure from a third party: ‘(1) First it has to be shown that the documentation is likely to support the case of the applicant or adversely affect the case of the respondent. The word . .
CitedAndrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 02 November 2021; Ref: scu.174769

Ezekiel v Orakpo: CA 16 Sep 1996

A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for possession was made so as to enforce the order. The debtor tendered a sum sufficient to pay the principal debt but not interest on it. The parties appealed a finding that the creditor was entitled to interest, but only for six years.
Held: The creditor was entitled to interest not limited to six years. A charging order carries a charge to secure interest, whether or not interest is specifically mentioned. Enforcement of a foreign currency judgment by means of a charging order required the judgment debt first to be converted to Sterling before completion of the enforcement by the making of the charging order. Enforcement of a judgment debt by means of a charging order under the Charging Orders Act 1979 is completed when the charging order is made final.
Millett LJ said that, for a judgement to carry judgment interest it is not necessary to say so specifically. Therefore it is also not necessary to mention interest in any Charging Order carrying the judgement into effect for such interest to be added to the security. He continued:-
‘Section 3(4) of the Charging Orders Act 1979 provides that the Charging Order takes effect as an equitable charge created by the judgment debtor by writing under his hand. It must therefore be given the same effect unless the Act itself provides otherwise as would an equitable charge on the land in question to secure a stated principle sum but with no mention of interest. Such a charge would carry interest even though there were no words allowing interest on the charge itself. That was decided at first instance in re Drax… which was followed . . in Stoker v Elwell . . The defendant invited us to over rule Stoker . . and re Drax although they have stood unchallenged for nearly a century.
His submission was founded on the well established principle that a Charging Order cannot be given except for an ascertained sum . . It is clear Law for example that a Charging Order cannot be made for untaxed costs. In the present case, of course, the costs were taxed. But it is said by parity of reasoning that it cannot be made to secure future interest since the amount of such interest cannot be ascertained in advance. However, the Charging Orders Act 1979 itself entitles the Court to make a Charging Order for monies due or to become due, and it appears to me that future interest at an ascertained rate (albeit a variable rate) from the date of judgment to the date of payment is an ascertained or at least an ascertainable sum for the purpose of the rule in question.
So far as the costs of enforcing the security are concerned, it is of course perfectly true that at the date of the Charging Order, or indeed subsequently, it was quite impossible to ascertain them. The Judge came to the conclusion that the Charging Order must, by the provisions of the statute, be given the same effect as if it were an equitable charge under hand only. If it were, the chargee would have the right in equity to add the costs of enforcing the security to the security. He considered that that should be implied into the Charging Order by virtue of section 3(4). I agree with him and do not think it necessary to add anything further on the matter.’

Millett LJ
Times 16-Sep-1996, [1997] 1 WLR 340
Judgments Act 1938 17
England and Wales
Citing:
Appeal fromEzekiel v Orakpo ChD 4-Nov-1994
The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not . .
See AlsoEzekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:
CitedCarnegie v Glessen and Others CA 1-Mar-2005
A dispute had been settled by imposition of a charging order against property expressed in a foreign currency. The claimant now said such an order was not possible, and had been made by mistake correctable under the slip rule.
Held: The Master . .
AppliedYorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land, Limitation

Leading Case

Updated: 02 November 2021; Ref: scu.80429

Kazakhstan Kagazy Plc and Others v Zhunus and Others: ComC 6 May 2016

The claimants sought damages alleging that certain transactions had been dishonestly procured by the defendants. The first defendant had made a settlement, and the second and third defendants now sought a contribution from him. Applications were now made.
Held: The applications were dismissed.

Leggatt J
[2016] EWHC 1048 (Comm)
WLRD, Bailii, Judiciary

Torts – Other, Litigation Practice

Updated: 02 November 2021; Ref: scu.563253

Biogen Plc v Medeva Plc: HL 31 Oct 1996

The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the antigens of a hepatitis virus was patented with a priority date of 22 December 1978 but was conceded to have been obvious by 21 December 1979.
Held: The claim for a DNA patent was too broad; no new principle was shown, and other means were available of achieving the technical effect claimed. The question of whether an invention was obvious should be treated with appropriate respect by an appellate court, and specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation. Disclosure must enable the invention to be performed to the full extent of the monopoly claimed.
Lord Hoffmann discussed a court of appeal reversing a decision of the first court: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His express findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance (as Renan said, la verite est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ and ‘Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.’

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Slynn of Hadley, Lord Hoffmann
Times 01-Nov-1996, [1997] RPC 1, [1996] UKHL 18, (1997) 38 BMLR 149
Bailii
Patents Act 1977 1(1) 72(1)
England and Wales
Citing:
Appeal fromBiogen Inc v Medeva Plc CA 28-Nov-1994
The description in a patent application’s specification must be of an invention. . .
CitedAllmanna Svenska Electriska A/B v The Burntisland Shipbuilding Co Ltd 1952
The question whether an the invention was obvious was ‘a kind of jury question’. As such, an appellate court should be reluctant to disturb it. If it was so obvious, the patent was invalid. . .
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
CitedBenmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
CitedAsahi Kasei Kogyo KK’s Application HL 1991
The House considered a case involving the issue of enablement of a particular peptide in a patent application.
Held: On the assumed facts that there had been a prior disclosure of the same invention neither the disclosed information nor common . .

Cited by:
CitedSeb SAa v Societe De’Longhi Spa CA 4-Jul-2003
The claimant’s action for patent infringement had been dismissed on the basis that the patent was invalid for obviousness.
Held: There was material before the judge on which he could properly conclude as he did on the presence of common . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedDesigners Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedHarding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
CitedSherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
CitedParker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
CitedRobin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
AppliedAngiotech Pharmaceuticals and Another v Conor Medsystems Inc CA 16-Jan-2007
The appellants challenged a finding that their patent for a vascular stent failed for obviousness.
Held: To overcome a judge’s finding in such a case some error of principle had to be shown. No such error was shown and the appeal failed. . .
CitedPozzoli Spa v BDMO Sa and Another CA 22-Jun-2007
The patentee had invented a method for storing CDs. The patentee sought leave to appeal a finding that its patent was invalid, and if successful, to appeal a finding that the defendant’s apparatus was not infringing.
Held: The application for . .
CitedGaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
CitedSibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
AppliedGenerics (UK) Ltd and others v H Lundbeck A/S (Costs) PatC 27-Jun-2007
The parties disputed the patentability of an anti-depressant drug Citalopram (Prozac).
Held: the claims were invalid for insufficiency. . .
CitedH Lundbeck A/S v Generics (UK) Ltd and others CA 10-Apr-2008
The court heard an appeal against a finding that a patent for a chemical compound was invalid for insufficiency.
Held: The appeal succeeded.
Enough information to ‘work the invention’ meant in order to make the product. . .
CitedGenerics (UK) Ltd and others v H Lundbeck A/S HL 25-Feb-2009
Patent properly granted
The House considered the patentability of a chemical product, citalopram made up of two enantiomers, as opposed to the process of its creation, questioning whether it could be new or was insufficient within the 1977 Act.
Held: The appeal . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
CitedCooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
CitedLucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
CitedRegeneron Pharmaceuticals Inc v Kymab Ltd SC 24-Jun-2020
SC Kymab Ltd (‘Kymab’) alleges that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims. The . .
CitedWarner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another SC 14-Nov-2018
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.78407

Dawkins v Lord Rokeby: 1873

dawkins_rokeby1873

Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause.
Kelly CB said that: ‘The authorities are clear, uniform and conclusive, that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceedingbefore any court or tribunal recognized by law.’
Witnesses before tribunals recognised by law should ‘give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice’.’

Kelly CB
(1873) LR 8 QB 255
Citing:
Appeal fromDawkins v Lord Rokeby 1866
. .

Cited by:
ApprovedDarker 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 . .
CitedTrapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
Appeal fromDawkins v Lord Rokeby HL 1875
The court unanimously confirmed the judgment of the lower court and expressly adopted the reasoning given. Witnesses before tribunals recognised by law should be able to ‘give their testimony free from any fear of being harassed by an action on an . .
CitedHeath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
CitedWatson 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 . .
CitedGeneral Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
CitedSilcott 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 . .
CitedJones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
CitedWhite 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 . .
CitedCabassi v Vila 12-Dec-1940
High Court of Australia – The claim sought to sidestep the rule giving immuity to witnesses before a court by alleging a conspiracy to give false evidence.
Held: Starke J said: ‘But it does not matter whether the action is framed as an action . .
CitedSingh 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 . .

Lists of cited by and citing cases may be incomplete.

Police, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.184729

Comet Products UK Ltd v Hawkex Plastics: CA 1971

The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis it was held that it should not have been allowed. A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent.
Where a respondent to an application for committal for contempt had chosen to deploy affidavit evidence before the court, the court had a discretion to allow cross-examination on the contents of those affidavits. However, the court must first be satisfied that the cross-examination will be confined to the allegations of contempt, rather than to wider matters relevant to the merits of the proceedings.
Lord Denning MR said: ‘This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action.
I cannot accept counsel’s submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:-
‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture . . ‘no one is bound to incriminate himself”
This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:-
‘this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance’;
and he went on to say at page 288:-
‘by long and immemorial usage,[it] has now become the law of the land’.
I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him.’
Megaw LJ observed that where there is a bona fide application to cross-examine a deponent on his affidavit in interlocutory proceedings, the application should normally be granted.

Lord Denning MR, Megaw LJ
[1971] 2 QB 67, [1971] 1 All ER 1141
England and Wales
Cited by:
CitedThe Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
CitedInplayer Ltd and Another v Thorogood CA 25-Nov-2014
Appeal against a decision that the first defendant in a chancery action was guilty of two contempts of court by reason of untruthful statements in his affidavit. He complained of procedural irregularities affecting the fairness.
Held: ‘the . .
CitedVIS Trading Co Ltd v Nazarov and Others QBD 18-Nov-2015
Application for the first defendant to be committed for alleged contempt of court for having failed to make disclosure of documents as required by a court order.
Whipple J said: ‘In this case, the extent to which the Defendants are in . .
CitedDiscovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contempt of Court

Leading Case

Updated: 02 November 2021; Ref: scu.179891

Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement): QBD 16 Feb 2018

Equitable Interpleader

Equitable Interpleader – Enforcement – controlled goods – interpleader – equity – common law – Civil Procedure – Rules of Supreme Court – title to goods – third party – Writ – High Court Enforcement Officers

Victoria McCloud M
[2018] EWHC 219 (QB)
Bailii
Civil Procedure Rules 85.4 85.5, Tribunals, Courts and Enforcement Act 2007
England and Wales
Citing:
CitedReading v The London School Board 1886
Wills J said: ‘All the common law statutes as to interpleader are now repealed and the right to that class of relief is regulated by Order LVII, by which the old practice of the Court of Chancery is modified’. . .
CitedEx parte Mersey Docks and Harbour Board 1899
AL Smith LJ said: ‘The matter [ie, of interpleader] now depends upon the provisions of Order LVII, r.1’ . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 02 November 2021; Ref: scu.605165

Compagnie Financiere du Pacifique v Peruvian Guano Co: CA 1882

Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’, because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v Monte Video Gas Co (1880) 5 QBD 556, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control.
I agree that the party issuing the summons for a further affidavit is bound by the description given in the sources of information mentioned in Jones v Monte Video Gas Co: that is to say, he is bound to a certain extent: I do not think that he would be bound absolutely by every description of their contents if the Court can see, from the nature of them, that the description of them is not or may not reasonably be correct. I do not think that the Court is bound any more on the second summons than on the first to accept absolutely everything which the party swearing the affidavit says about the documents, but the Court is bound to take his description of their nature. The question must be, whether from the description either in the first affidavit itself or in the list of documents referred to in the first affidavit or in the pleadings of the action, there are still documents in the possession of the party making the first affidavit which, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring the further affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs’ case, but also at the statement of the defence and the defendants’ case.’

Brett LJ
(1882) 11 QBD 55
England and Wales
Cited by:
CitedSchetky v Cochrane and the Union Funding Co 1918
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedMartin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
CitedBokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
CitedRobinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.253699

Kimathi and Others v Foreign and Commonwealth Office: QBD 18 Mar 2016

Ruling in relation to Defendant’s application for an order ‘directing that the issues of double actionability and limitation be heard and determined as preliminary issues’

Stewart J
[2016] EWHC 600 (QB)
Bailii
England and Wales
Citing:
See AlsoKimathi and Others v Foreign and Commonwealth Office QBD 26-Nov-2015
Reasns on decisions on applications for exclusion of certain witness statements . .
See AlsoKimathi and Others v Foreign and Commonwealth Office QBD 16-Dec-2015
. .

Cited by:
See AlsoKimathi and Others v Foreign and Commonwealth Office QBD 31-Oct-2017
Third judgment in respect of amendments to the individual Particulars of Claim . .
See AlsoKimathi and Others v Foreign and Commonwealth Office QBD 28-Nov-2017
Application to admit contents of book into evidence. . .
See AlsoKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.562173

D v National Society for the Prevention of Cruelty to Children: HL 2 Feb 1977

Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of Glaisdale said: ‘I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.’
Lord Diplock explained the rationale of the rule in Marks v Beyfus as being plain: if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.
Lord Hailsham of St. Marylebone said: ‘The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop’.

Lord Simon of Glaisdale, Lord Diplock, Lord Hailsham of St. Marylebone
[1978] AC 171, [1977] 2 WLR 201, [1977] 1 All ER 589, [1977] UKHL 1
Bailii
England and Wales
Citing:
ExplainedMarks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
CitedAttorney-General v Mulholland CA 1963
The court rejected a claim for protection from disclosure of matters passing between journalists and their sources: ‘it is said that however these questions were and however proper to be answered for the purpose of this inquiry, a journalist has a . .

Cited by:
CitedThe Chief Constable of the Greater Manchester Police v McNally CA 25-Jan-2002
The claimant sought damages against the police for malicious prosecution and otherwise. He sought disclosure of whether a party referred to in the case as X, had at any time been a paid informer. The police appealed an order to disclose this. . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedHome Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
CitedAshworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
CitedAmwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
CitedWestcott 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 . .
CitedRegina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
CitedWhite 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 . .
CitedArias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .
CitedAndrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
CitedPowell v Chief Constable of North Wales Constabulary CA 16-Dec-1999
Roch LJ said: ‘When an issue of public interest immunity is raised, the court’s first duty is to weigh the public interest in preserving the immunity against the public interest that all relevant information which might assist a court to ascertain . .
CitedIn re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
CitedFarm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.181202

Heath v Tang, Stevens v Peacock: CA 11 Aug 1993

The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to pursue an appeal; in the second, no trustee had been appointed.
Held: A bankrupt may not personally appeal against the judgment on which the bankruptcy order made. The court set out the duties of court in supervising actions for and against a bankrupt. The jurisdiction conferred by s.303(1) protects a bankrupt from injustice which might otherwise be caused by his inability to bring proceedings outside the bankruptcy jurisdiction and, in an appropriate case, permits a bankrupt to apply for an order that the trustee must make an application or bring a claim or allow the bankrupt to conduct proceedings in the name of the trustee.
Hoffmann LJ noted that the bankrupt’s estate vests in his trustee when appointed under section 306 of the 1986 Act, and, under section 285(3) no creditor has, after the making of a bankruptcy order, any remedy against the property or person of the bankrupt in respect of debts provable in the bankruptcy. The effect is ‘that the bankrupt ceases to have an interest in the either his assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge.’

Hoffmann LJ
Independent 14-Oct-1993, Times 11-Aug-1993, [1993] 4 ALL ER 694, [1993] 1 WLR 1421
Insolvency Act 1986 306 285(3)
England and Wales
Cited by:
CitedCoulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
CitedThames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
CitedWilliams v Glover and Another ChD 4-Jun-2013
The company’s liquidator had refused to assign to its former directors a claim for a reduction in corporation tax which they were funding.
Held: Such a claim did not constitute property within section 436, and was not a chose capable of . .
CitedWordsworth v Dixon CA 1997
The bankrupt had been a defendant in the action brought by the plaintiff. The court considered his standing to appeal.
Held: The right to appeal vested in the trustee. Sir Thomas Bingham MR referred to the case of Heath v Tang and said: ‘that . .
CitedSingh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.81297

G v G (Minors: Custody Appeal): HL 25 Apr 1985

The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong’, ‘plainly wrong’, or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible’.
Lord Fraser of Tullybelton said: ‘The reason for the limited role of The Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343 apply.’ and
After quoting Asquith LJ, Lord Fraser continued: ‘I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge.’

Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Diplock, Lord Edmund-Davies, Lord Bridge of Harwich
[1985] 1 WLR 647, [1985] 1 WLR 647, [1985] 2 All ER 225, [1985] UKHL 13, [1985] FLR 894
Bailii
England and Wales
Citing:
CitedIn re F (a Minor) (Wardship: Appeal) CA 1976
Bridge LJ said: ‘The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, erred in law or applied any wrong principle. On the view I take, his error was in the balancing . .
ApprovedBellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
ApprovedClarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Appeal fromG v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:
CitedIn re B (a Minor) (Adoption: Natural parent) HL 17-Dec-2001
The parents of a child were not married. The mother stated and had maintained her disinterest in the child from birth, and the father had been caring for the child. The local authority looked to find a fostering place with a view to adoption. The . .
ApprovedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
CitedPiglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedRe J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
CitedMclouglin v Jones and others CA 27-May-2005
Application for permission to appeal against striking out of part of damages schedule.
Held: Limited leave given. . .
CitedAgulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
CitedIn Re P (Minors) (Contact) CA 15-May-1996
The father appealed an order refusing him direct contact with the child. The judge had made the order because he considered that the mother’s hostility to contact made it likely that her health would suffer if contact was ordered, and that the . .
CitedDown Lisburn Health and Social Services Trust and Another v H and Another HL 12-Jul-2006
The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the . .
CitedHill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
CitedAM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
CitedBrady v Norman QBD 26-May-2010
The claimant appealed against refusal of the Master to extend the 12 month limitation period in his proposed defamation claim. The allegations related to a dispute at an Aslef barbecue, and later of forgery. The claimant was a former General . .
CitedWhite 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 . .
CitedC v V CoP 25-Nov-2008
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. . .
CitedJackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Leading Case

Updated: 01 November 2021; Ref: scu.231167

In re E (A Child): CA 19 May 2016

‘Appeal against findings of sexual abuse made against a father and his teenage son in the course of care proceedings relating to that boy and separate care proceedings relating to the three children of a different family. In addition to a detailed challenge to the judge’s analysis of the factual evidence in this particular case, the appeal raises the following more general issues:
a) The approach to determining whether a child witness should be called in the course of family proceedings following the Supreme Court decision in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12; [2010] 1 WLR 701.
b) The weight to be given to defects in both the process and the content of ABE interviews conducted with child victims and witnesses (‘Achieving Best Evidence in Criminal Proceedings’ – Ministry of Justice March 2011).
c) The approach to be taken by those representing a child in family proceedings where that child is himself accused of being the perpetrator of abuse.
d) The basic requirements of due process necessary to meet the Article 6 fair trial rights of such a child during the investigation and any subsequent Family Court proceedings where he or she might properly be regarded as either a perpetrator or a victim or both.’

McFarlane, Glsoer, Macur LJJ
[2016] EWCA Civ 473, [2016] WLR(D) 270, [2016] 4 WLR 105
Bailii, WLRD
England and Wales

Children, Litigation Practice

Updated: 02 November 2021; Ref: scu.564447

Walker v Wilsher: CA 1889

Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters and the interview were without prejudice, and the question is whether under such circumstances they could be considered in order to determine whether there was good cause or not for depriving the plaintiff of costs. It is, I think, a good rule to say that nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed. I am, therefore, of opinion that the learned judge should not have taken these matters into consideration.’
Lindley LJ said: ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one. A contract is constituted in respect of which relief by way of damages or specific performance would be given. Supposing that a letter is written without prejudice then, according both to authority and to good sense, the answer also must be treated as made without prejudice.’
and ‘No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer was dealt with – the material matters, that is to say, of the letters – must not be looked at without consent.’
Bowen LJ said: ‘In my opinion it would be a bad thing and lead to serious consequences if the Courts allowed the action of litigants, on letters written to them ‘without prejudice’, to be given in evidence against them or to be used as material for depriving them of costs. It is most important that the door should not be shut against compromises, as would certainly be the case if letters written ‘without prejudice’ and suggesting methods of compromise were liable to be read when a question of costs arose.’ and ‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

Bowen LJ, Lord Esher MR, Lindley LJ
(1889) 23 QBD 335
England and Wales
Cited by:
CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
AppliedStotesbury v Turner 1943
Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge. . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.199274

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 Appeal.
Held: The questions which applied when looking for an interim injunction in patent infringement cases were no different from those in other cases. The court must first look to the balance of convenience. There was no rule that the court must first look for the prospects of success of either party. The court must be satisfied the claim ‘is not frivolous or vexatious; in other words, that there is a serious question to be tried’. Where there was any doubt about damages being adequate compensation for the grant or withholding of an injunction, the court should preserve the status quo. The judge’s assessment of that balance of convenience was not to be disturbed.
Lord Diplock said of the phrase ‘prima facie case’ that it ‘may in some contexts be an elusive concept’ and ‘the governing principle is that the court should first consider whether, if the plaintiff were to succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable would be [an] adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.’

Lord Diplock, Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and Lord Edmund-Davies
[1975] 2 WLR 316, [1975] AC 396, [1975] UKHL 1, [1975] 1 All ER 504, [1975] FSR 101, [1975] RPC 513
Bailii
England and Wales
Citing:
CitedDonmar Productions Ltd v Bart (Note) 1967
. .
CitedHarman Pictures N V v Osborne ChD 1967
The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a . .
CitedHubbard v Vosper CA 1971
Claims of infringement were made as to copyright works being various works about Scientology. Extracts had appeared in the defendant’s book which was critical of the cult. It was submitted by the plaintiff that the fair dealing section applied only . .
CitedJones v Pacaya Rubber and Produce Co Ltd CA 1911
The court considered the standard of proof when considering an application for an interim injunction. There was a need to show that there is ‘certainly a case to be tried.’ . .
CitedPreston v Luck CA 1884
The court referred to the need to show ‘a probability that the plaintiff is entitled to relief’ . .
CitedSmith v Grigg Ltd CA 1924
The plaintiff sought an interlocutory injunction to restrain infringement of a registered design.
Held: Where the design was of recent origin, had not been established by a court of law, and where its validity could be doubted, the court would . .
CitedWakefield v Duke of Buccleugh 1865
The practice of taking undertakings from a party at an interlocutory hearing: ‘aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing.’ . .

Cited by:
CitedImutran Ltd v Uncaged Campaigns Ltd and Another ChD 11-Jan-2001
The test for whether an interim injunction should be granted restraining publication of material claimed to be confidential, where such a grant would infringe the right to freedom of expression was slightly different under the 1998 Act. The . .
CitedCream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
CitedBelize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2) PC 13-Aug-2003
(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim . .
CitedCream 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 . .
CitedHerbage v Pressdram Ltd CA 1984
There was a publication of articles which referred to convictions which were spent under the 1974 Act. The court restated the principle in Bonnard v Perryman: ‘These principles have evolved because of the value the court has placed on freedom of . .
CitedHerbage v Times Newspapers Ltd CA 30-Apr-1981
The principles in American Cyanamid did not affect the rule in Bonnard v Perryman. Sir Denys Buckley saiod: ‘the question what meaning the words complained of bore was primarily one for the jury. Suppose the words bore the second meaning alleged and . .
CitedUniversity of Oxford and others v Broughton and others QBD 10-Nov-2004
The claimants sought injunctions to protect themselves against the activities of animal rights protesters, including an order preventing them coming with a wide area around the village.
Held: The orders made were justified with the additional . .
CitedHall and others v Save Newchurch Guinea Pigs (Campaign) and others QBD 17-Mar-2005
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 . .
CitedJewellery Appraisal Services v Belson and others QBD 11-Apr-2005
The defendants had sold a business and included a non-compete covenant. The claimants sought to enforce it against them. It was said that they had approached insurers with a view to commencing business supplying jewelry. The defendants said their . .
ConsideredRegina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
CitedInternational Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
CitedNWL Ltd v Woods HL 1979
The phrase ‘trade dispute’ was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: ‘It is wrong to attempt to construe . .
CitedAdidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
CitedGarden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
CitedFiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
CitedBoehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
CitedJacobs v Official Receiver; In re Jacobs (a bankrupt) ChD 3-Apr-1998
The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the . .
CitedIntercall Conferencing Services Ltd v Steer QBD 15-Mar-2007
The claimant company sought an interim injunction to prevent the defendant, a former employee, from working for a competitor in breach of a clause in his contract and from divulging any confidential information. The defendant said that the . .
CitedLes Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
CitedNew ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
CitedNational Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
CitedFaisaltex Ltd and Others v Lancashire Constabulary and Another QBD 24-Jul-2009
The claimants wished to claim damages saying that in executing a search warrant, the defendant had made excessive seizures of material. The claimants sought inspection by independent counsel of the materials seized to establish this in a manner . .
CitedDass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
CitedAssociated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
CitedBritish Broadcasting Corporation v Harpercollins Publishers Ltd and Another ChD 4-Oct-2010
The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV . .
CitedSmith v Inner London Education Authority CA 1978
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 . .
CitedCoventry 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 . .
CitedCaterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
CitedRevenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
CitedAB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
CitedNugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
CitedMerlin Entertainments LPC and Others v Cave QBD 25-Sep-2014
The claimants operated amusement parks. The defendant, believing that the parks were not being opearated as safely as they should be set up web-sites attacking the claimants and some employees in intemperate terms. The claimants sought interim . .
CitedNATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
ModifiedNWL Limited v Woods 1979
Lord Diplock said: ‘Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its . .
CitedHeythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
CitedLawrence David Limited v Ashton CANI 1989
The American Cyanamid principles apply in cases of interlocutory injunctions in restraint of trade just as they do in other cases. . .
CitedWhitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Leading Case

Updated: 01 November 2021; Ref: scu.174732

Shepherd Construction Ltd v Berners (BVI) Ltd and Another: TCC 25 Mar 2010

The defendants sought a release from an asset freezing order, saying that there was no good reason to anticipate any dissipation of assets. An action between the parties had been settled on terms, but the defendant had not met payments. The defendant objected to the admission of certain correspondence saying that it had been without prejudice.
Held: The application failed, and the order should continue.
The correspondence was not without prejudice: ‘The communications, in which payment of the agreed and overdue sums was repeatedly promised, were not offers; neither were they made in the course of negotiations for settlement. There was nothing to settle. They are certainly not being relied on by the claimant as an admission of liability, since there already was a full admission of liability, both by way of the Tomlin order and as a result of the subsequent judgment. These communications were being relied on by the claimant because they demonstrated the ongoing failure on the part of these defendants to pay the sums otherwise due, despite promises to the contrary. In those circumstances, it seems to me that these communications are not ‘without prejudice’ and are properly before the court.’
The history of repeated and broken promises was sufficient to justify a finding that there was a risk of dissipation. The defendant companies fell foul of the criteria set out in Iambic.
The order relating to the second defendant was relaxed but not removed.

Coulson J
[2010] EWHC 763 (TCC)
Bailii
England and Wales
Citing:
CitedCommissioners of Customs and Excise v Anchor Foods Ltd (No 2) ChD 24-Mar-1999
The claimant intended to seek recovery of a very substantial sum from the defendant. On learning of the defendant’s intention to sell its assets, it sought an order freezing them.
Held: The court has the discretion to order a freezing of a . .
AppliedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedNinemia Maritime Corporation v Trave Schiffahrtsgellschaft MbH 1983
A claimant seeking an asset freezing order needs to identify ‘solid evidence of dissipation’. . .
See alsoChorus Group v Berner (BVI) Ltd and Another TCC 1-Nov-2006
Application to continue a freezing injunction.
Held: The order should continue. The defendant companies were registered in countries where enforcement would be more difficult, one of the defendants was a single purpose vehicle,and there was . .
AppliedO’Regan v Iambic Productions 1989
The court set out a series of elements to be taken into account when making a Mareva asset freezing order: ‘1. The nature of the assets and the ease with which they can be dissipated.
2. The nature and financial standing of the defendant . .
CitedThe Niedersachsen ChD 1983
In order to obtain, or to enlarge a freezing order, the applicant must show that in considering the evidence as a whole he has, at a minimum, a ‘good arguable case’, and also the existence of a real risk of dissipation or secretion of assets. . .
CitedLinsen International Ltd and Others v Humpuss Sea Transport Pte Ltd and Another ComC 19-Feb-2010
The net book value of a company’s assets is not the appropriate figure for the court to consider when considering whether or not there are assets sufficient to meet a potential claim. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.412286

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 order (as opposed to a criminal search warrant), where the court had in effect ordered ex parte the defendant to allow the plaintiff entry to his premises to inspect documents. The plaintiff appealed against refusal of such an order.
Held: The appeal succeeded, and the order made. This type of order requires an applicant to satisfy four essential pre-conditions: that there is an extremely strong prima facie case; that the damage which they will suffer will be serious; that there is clear evidence that the respondents have in their possession some damaging documents or other material; and that there is a real possibility that the material might be destroyed before any application inter partes could be brought.
Lord Denning MR said: ‘Let me say at once that no court in this land has any power to issue a search warrant to enter a man’s house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say ‘Get out’. That was established in the leading case of Entick v Carrington (1765) 2 Wils.K.B.275. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorize the plaintiff’s solicitors or anyone else to enter the defendants’ premises against their will. It does not authorize the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window . . The plaintiffs must get the defendants’ permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders them to give permission – with, I suppose, the result that if they do not give permission, they are guilty of contempt of court.’

Lord Denning MR, Ormrod LJ, Shaw LJ
[1976] Ch 55, [1975] EWCA Civ 12, [1976] 1 All ER 779, [1976] 2 WLR 162, [1976] RPC 719, [1976] FSR 129
Bailii
England and Wales
Citing:
CitedEntick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
CitedEMI v Pandit ChD 3-Dec-1974
The making of an order allowing the plaintiff’s to execute a search on the other party’s premises is in effect part of the process of discovery. Templeman J discussed the making of such orders ex parte: ‘if it appears that the object of the . .
CitedThe United Company of Merchants of England, Trading To The East Indies v Roger Kynaston, Esq HL 9-Mar-1821
The Respondent, an impropriate rector, having by a decree of the Court of Chancery been found to be entitled (under the decree made in pursuance of the act 37 Henry VHI.) to the tithes, according to the value, of warehouses in London, occupied by . .

Cited by:
CitedC 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 . .
CitedA J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
CitedRank Film Distributors v Video Information Centre HL 1-Mar-1981
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 . .
CitedPhillips 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.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.188779

Dring v Cape Distribution Ltd and Another: QBD 5 Dec 2017

Disclosure of Documents filed at Court

Constitution – Access To Courts – Open Justice – court files – court records – public scrutiny of courts – asbestos – mesothelioma – TDN13 – Technical Data Notice 13 – Cape – asbestolux – disclosure – document management systems – CPR 5.4C(2) – settlement – dispute resolution – health and safety
Principles and status of the documents in this case
The right of access to court is inherent in the rule of law.
Openness of justice fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
The courts do not merely provide a public service to the ‘users’ who appear before them. Previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
Access to a court, being not merely the provision of a service to ‘users’ entails that the parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.
There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.
The rules and common law jurisdiction to order access to documents by the public
CPR rule 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules. The rules provide a qualified and controlled system of openness regulated by the court rules in a judicial manner.
Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2).
Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law power.
Applicable test
Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
Where the applicant has a legitimate interest then the court must still carry out a balancing exercise in relation to any harm to other parties legitimate interests when deciding whether to allow access.
Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
The principle of open justice is engaged notwithstanding that a case settles before judgment. It applies to documents in such a case which have been read to or by the court, treated as so read, or which ‘have featured in’ the proceedings.
Status of the documents
Bundles which have been filed are part of the records of the court. ‘Bundle D’ in this case does not amount to a bundle filed at court. The paper bundles do fall to be treated as filed.
The paper documents other than the bundles were retained in court at the end of trial and held together with the court files, and became documents filed on the records of the court, alternatively the documents other than those in the bundles fall within the court’s general discretion as to access. They were deployed in court and placed before the judge including after he retired to consider his decision. They were subject to what Lord Justice Toulson referred to as the ‘default position’ that access should be given on the open justice principle.
The residue of bundle D not already contained in the paper bundles is material which falls outside the scope of the default principle of openness.
There is a power to order disclosure of bundle D under the common law jurisdiction of the court, but I do not exercise those powers here.
Legitimate interest and intended use
A legitimate interest can include academic interest, use by a pressure group or use in some journalistic form and indeed any number of other uses which are ulterior (in the proper sense of that word) without being illegitimate.
Mr Dring acts for a group which provides help and support to asbestos victims. It some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest.
The intended use is to enable him and the forum of which he is an officer, to:
make the material publicly available,
by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
understand the industrial history of Cape and its development of knowledge of asbestos safety
clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
to assist court claims and the provision of advice to asbestos disease sufferers.
Those are legitimate aims.
Specificity of application and balancing exercise<>The degree of specificity which is possible in an application under rule 5.4C must necessarily be limited in practical terms by the fact that without seeing the documents in the first place the best that can be expected so as to assist the court is that general categories of documents be identified unless there is a particular identified document which known about and is sought.
The classes sought in the statement provided with the application were:
(i) All witness statements
(ii) Experts’ reports
(iii) Transcripts of evidence
(iv) All documents disclosed by Cape and other parties.
I am satisfied that (in no order of priority) the content of those documents:
i. would be likely to be of academic and scientific interest as part of public and social discourse as to the history of asbestos safety, regulation and knowledge as it developed during the 20th century,
ii. would be likely to be considered by advisers advising parties to asbestos litigation as to the merits of their cases whenever issues arise which touch upon Technical Data Notice 13 and connected Regulations,
iii. is likely to be relevant the product safety of asbestos insofar as understood within the major manufacturers and connected companies as compared with general public at various points in the 20th century, and
iv. is likely to be relevant to the extent to which employer defendants could have been expected to appreciate the risks of asbestos.
Partial access to the documents could lead to ‘cherry picking’ in terms of the publishing of negative material especially if access was only given to material which paints asbestos, and perhaps Cape in a bad light. There is a risk, but a much reduced risk, of cherry picking if access is given less selectively and more rather than less widely.
A requirement for special circumstances is desirable in the case of disclosure documents served but not deployed at trial, in this instance bundle D, to ensure that non-parties are not placed in a better position than parties in relation to unused but served disclosure material. I do not consider that grounds have been made out for disclosure in relation to bundle D.
I was not presented with substantial evidence or argument from Cape as to harm to it would suffer from disclosure, at the level of particular documents or classes of document within the paper files.
I do not regard the post hoc concerns now raised by Cape about the privacy of persons named in the documents in connection with asbestos related disease as a ground for refusing public disclosure of these documents as a credible or weighty one in this instance.
Conclusions
The balance is in favour of disclosure of:
i. the witness statements including exhibit
ii. expert report
iii. transcripts,
iv. disclosed documents relied on by the parties at trial ie those in the paper bundles only,
v. written submissions and skeleton
vi. Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.
In formal terms I am therefore allowing the application in relation to document classes (i) to (iii) listed in the statement of Ms Bains dated 6 April 2017 but only partially allowing disclosure of documents in category (iv). I am also allowing disclosure of certain other documents as is apparent from the list just set out.
I am excluding from disclosure the contents of bundle D for reasons already given. I am also excluding copies of the disclosure statements of the parties because that would tend to undermine (by giving disclosure by indirect means) the decision I have made that bundle D is not disclosed.
The Applicant may return to court to seek a decision as to access in respect of any documents in bundle D which it appears upon consideration were omitted from the paper bundles, yet were in fact relied on at court (this ought to be apparent from the documents for which access has been given as above). Bundle D shall remain impounded in court.
The documents subject to disclosure to Mr Dring shall therefore be made available by the court to the Applicant’s solicitor as an officer of the court for copying or scanning upon the giving of an undertaking that documents not within the scope of this order, if contained in the files, will not be copied.
I direct that the court file and impounded bundle D shall not be destroyed in the usual course of administration of the court without an order of the court.

Victoria McCloud M
[2017] EWHC 3154 (QB)
Bailii
England and Wales

Litigation Practice, Constitutional

Updated: 01 November 2021; Ref: scu.602135

Roberts v Gill and Co Solicitors and Others: SC 19 May 2010

The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be transferred only if the claimant’s brother paid all the Inheritance Tax. It was transferred without that tax having been paid. The events were now several years outside the limitation period. The claim was framed as a duty by the solicitors to the claimant personally.
Held: The claimant’s appeal was dismissed. The claimant had to succeed not only in applying to alter his claim to make it on behalf of the estate, but also to add the administrator, his brother to the claim. If he had to do the latter, could he do so after commencing the action, and outside the limitation period. The claimant did not show either that he need not add the brother, nor that he could do so after commencing the claim.
A party could be added after the commencement of an action only where this was necessary in order to determine the original litigation, and the action against the brother was not such.
Here the proposed addition of a party and amendments were for a new action. That new action would be out of time.
Lord Clarke and Lord Hope dissented in part in allowing that the brother could have been added as a party after the action had been commenced to avoid injustice, but there were no such special circumstances in this case.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Collins, Lord Clarke
[2010] WLR (D) 130, [2010] UKSC 22, [2010] PNLR 30, [2010] WTLR 1223, [2010] 2 WLR 1227, [2011] AC 240
WLRD, Bailii, SC, SC Summ, Bailii Summary
Limitation Act 1980 35, Civil Procedure Rules 19.5
England and Wales
Citing:
CitedWeldon v Neal CA 1887
An amendment to pleadings should not be allowed so as to allow a plaintiff to set up a cause of action which would otherwise be barred by the Statutes of Limitation. . .
Appeal fromRoberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
CitedSpokes v Grosvenor and West End Railway Terminus Hotel Co Ltd CA 1897
The court discussed the joinder of the company in a derivative action. A L Smith LJ said: ‘That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action . .
CitedYorkshire Regional Health Authority v Fairclough Building Ltd and Another CA 16-Nov-1995
The substitution of a successor party to a claim does not constitute a new claim for limitation purposes. Millett LJ considered the objects of the 1980 Act: ‘The 1980 Act was enacted in order to implement the recommendations of the Twenty-First . .
CitedPerforming Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
CitedMabro v Eagle, Star and British Dominions Insurance Co Ltd CA 1932
Scrutton LJ said: ‘In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to . .
CitedHaq v Singh and Another CA 25-May-2001
The claimant had been made bankrupt, and when she sued the defendant, was challenged as to her standing. She obtained an assignment of the right of action from her trustee in bankruptcy. She then sought to amend her pleadings under the rule. It was . .
CitedHarmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
CitedRoyal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
CitedHayim v Citibank NA PC 1987
(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts . .
CitedLiff v Peasley CA 1980
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. . .
CitedOates v Consolidated Capital Services Pty Ltd 3-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) CORPORATIONS – derivative action – sections 236 and 237 Corporations Act 2001 (Cth) – meaning of ‘proceedings on behalf of a company’ – whether using a . .
CitedCooke v Gill CCP 11-Jan-1873
What constitutes a cause of action is ‘every fact which is material to be proved to entitle the plaintiff to succeed.’ . .
CitedIngall v Moran CA 1944
The plaintiff had issued a writ in 1942 as administrator of his deceased son’s estate. However, he did not take out letters of administration until the November. It was said that proceedings instituted by an applicant who at the time had no standing . .
CitedSmith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
CitedWallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
CitedHilton v Sutton Steam Laundry CA 1946
. .
CitedBrickfield Properties Ltd v Newton CA 1971
Court’s Investigation of Construction Claims
The court heard an application to amend pleadings to add a claim about negligent supervision of a construction. Sachs LJ said: ‘Where there are found in completed buildings serious defects of the type here under review the facts relating to design, . .
CitedLucy v W T Henleys Telegraph Works Co Ltd (ICI Ltd, third party) 1970
Megaw LJ discussed the application of O 15 r 1(4): ‘Paragraph (2) of that rule provides that a court may allow a party to amend the writ ‘after any period of limitation current at the date of the issue of the writ has expired’ but this is expressly . .
CitedBurns v Campbell 1951
An action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts . .
CitedFinnegan v Cementation Co Ltd CA 1953
The plaintiff had obtained Letters of Administration in Southern Ireland only but sought to bring an action under the Fatal Accidents Act in England. There were two separate bases upon which the plaintiff (the widow of a workman killed in a work . .
CitedDavies v Elsby Brothers Ltd CA 1961
The writ was issued within the limitation period for the claim against ‘Elsby Brothers (a firm)’. In fact, the firm’s business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedChatsworth Investments Ltd v Cussins (Contractors) Ltd CA 1969
. .
CitedBraniff v Holland and Hannen and Cubitts (Southern) Ltd CA 1969
Widgery LJ said: ‘Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments . .
CitedBickley v Dorrington 12-Nov-1737
A bill was brought by creditors, and by one of the residuary legatees of the testator, against his executors, the other residuary legatee, and the former partner of the testator to recover from the former partner money owing to the estate.
CitedAlsager v Rowley 16-Mar-1802
Lord Eldon LC said: ‘The established rule of the Court is certainly . . that in ordinary cases a debtor to the estate cannot be made a party to a bill against the executor: but there must be, as the cases express it, collusion or insolvency. That . .
CitedBowsher v Watkins CA 16-Feb-1830
Residuary legatees brought suit against the estate executors and a surviving partner of the testator for an account. It was argued that there were no special circumstances justifying the action by legatees.
Held: Collusion between the executor . .
CitedDavies v Davies CA 12-Jun-1837
Residuary legatees filed a bill against the executor and the surviving partner of the testator for an account of partnership transactions.
Held: In the absence of a charge of fraud or collusion, there were no special circumstances justifying . .
CitedBarker v Birch 19-Jul-1847
There may be circumstances under which the Court will, at the suit of universal legatees under a will, direct an account against a debtor to the testator’s estate, without collusion being established between the debtor and the personal . .
CitedIn re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
CitedMilne v Milne; Travis v Milne 29-May-1851
A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; . .
CitedYeatman v Yeatman 1877
An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could . .
CitedBradstock Trustee Services Ltd v Nabarro Nathanson ChD 1995
The plaintiffs were trustees of an occupational pension scheme. It began professional negligence proceedings to recover an expected surplus paid to the employer by the solicitors whose advice had been acted on. The anticipated costs were . .
CitedMorrison v Morrison’s Executors 1912
Lord Skerrington said: ‘A decree in such an action would be res judicata, provided always that the whole trustees and beneficiaries had been called as defenders.’ . .
CitedArmour v Glasgow Royal Infirmary 1909
Lord Ordinary, Lord Skerrington said that in the ordinary case the action could be brought only at the instance of the trustees. But the testamentary trustees had been called as defenders, and concurred with the Infirmary in maintaining that the . .
CitedRae v Meek HL 1889
The beneficiaries under a trust created by a marriage contract sued a trustee for having lost trust money which had been lent on the security of unfinished houses in a building speculation. The trustee was held liable to restore the trust fund. The . .
CitedKonamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
CitedE M Bowden’s Patents Syndicate Ltd v Herbert Smith and Co 1904
Where an equitable assignee sues a third party, the assignor must be joined as a defendant. The Plaintiff as the equitable owner of a patent was given liberty to amend its pleading by joining the legal owner, (failing which the Plaintiff’s case . .
CitedIn Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
CitedNurcombe v Nurcombe CA 1985
The court discussed a minority shareholder’s action to enforce the company’s claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the . .
CitedVandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
CitedWilliam Brandt’s Sons and Co v Dunlop Rubber Co HL 1905
The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the . .
CitedWeddell v JA Pearce and Major 1988
A cause of action in negligence was assigned in February 1986. The writ was issued by the assignee alone on 2 May 1986, at which time no notice of the assignment had been given to the defendants. It was argued that the action was a nullity.
CitedRobinson v Unicos Property Corpn Ltd CA 1962
The plaintiff sought an additional averment (unsuccessfully objected to as constituting the addition of a new cause of action) to plead that the first plaintiff sued as equitable assignee of the benefit of a contract made with the defendant (the . .
CitedCentral Insurance Co Ltd v Seacalf Shipping Corpn (The Aiolos) CA 1983
Where an insurer indemnifies the assured, he is entitled to exercise, through subrogation, any claim the assured may have against the person who caused the losses. Absent an assignment of the claim, it belongs to the assured and the insurer does not . .
CitedRed Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
CitedRed Sea Insurance Co Ltd v Bouygues SA and Others 1993
Hong Kong . .
CitedWilliam Brandt’s Sons and Co v Dunlop Rubber Co HL 1905
The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the . .
CitedThree Rivers District Council and Others v Governor and Company of Bank of England CA 6-Dec-1994
Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name. . .
CitedWelsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .

Cited by:
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 01 November 2021; Ref: scu.415923

Thomson v Berkhamsted Collegiate School: QBD 2 Oct 2009

Costs were to be sought against third parties to the action. A pupil had taken court action against the school seeking damages, alleging that it had failed to protect him from bullying. His action was discontinued. The school now sought its costs (andpound;250,000) from his parents, who had funded their son’s claim. The school sought disclosure of various documents.
Held: The court had power to make any necessary ancillary orders in a costs application. General principles were set down: ‘i) The order for payment of costs by a non-party would always be exceptional and any application should be treated with considerable caution.
ii) The application should normally be determined by the trial judge who could give effect to any views he had expressed as to the conduct of the non-party without constituting bias or the appearance of bias.
iii) The mere fact that someone has funded proceedings would generally be insufficient to support an application that they pay the costs of the successful party. Pure funders, as described at the case of Hamilton v Al-Fayed No. 2 [2002] EWCA Civ 665 reported [2003] QB 117 at [40], will not normally have the discretion exercised against them. That definition of ‘pure funders’ means those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.
iv) It is relevant but not decisive that the defendant has warned the non-party of the intention to seek costs or that the non-party’s funding has caused the defendant to incur the costs it would not otherwise have had to incur;
v) The conduct of the non-party in the course of the litigation and other than as a pure witness of material fact is of relevance and potential weight.
vi) Most of the decided cases on the exercise of the court’s discretion under section 51 concerned commercial funders or corporate bodies closely associated with the party who incurred the costs liability which they were unable to satisfy. In the family context, the courts have been reluctant to impose third party costs orders against those family or friends who in the interests of access to justice assist a party to come to court for philanthropic and disinterested reasons.
vii) In determining these applications the court must exercise its case management powers to ensure that the application does not turn into satellite litigation that results in prolonged, complex and over-extended arguments about costs about costs. For that reason the inherent strength of the application is always a relevant factor.’
In this case the parents were not acting in a disinterested fashion. There was a reasonable prospect of the claim for third party costs succeeding, and appropriate disclosure was ordered.

Blake J
[2009] EWHC 2374 (QB), [2010] CP Rep 5
Bailii
Supreme Court Act 1981, Civil Procedure Rules 48.2
England and Wales
Citing:
CitedDymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
CitedGrecoair Inc v Tilling and others QBD 14-Jan-2009
The court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order. . .
CitedPR Records Ltd v Vinyl 2000 Limited and others ChD 15-Jan-2008
The defendant in the main action sought a third party costs order. . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Civil Procedure Rules

Updated: 01 November 2021; Ref: scu.375580

Gleeson v J Wippell and Co Ltd: ChD 1977

The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that having due regard to the subject matter in dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in the proceedings to which the other is party. It is in that sense that I would regard the phrase ‘privity of interest’. Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa.’ ‘ but ‘Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicion. A defendant ought to be able to put his own defence in his own way and to call his own evidence.’

Sir Robert Megarry VC
[1977] 1 WLR 510, [1977] 3 All ER 54
England and Wales
Cited by:
ApprovedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedWiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedNelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
CitedCheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
CitedThe Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
CitedOMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.198724

Bath v Escott: ChD 11 May 2017

Judgment need not follow hearing transcript

Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the transcript of the judgment, as approved by the judge, and sent to the parties, is in any way different from the reasons actually pronounced by the judge at the time of giving judgment, is not wrong in law. Nor does it in itself even give rise to concern. It is an entirely lawful and proper practice for a judge, on receiving a transcript of what was said at the time in giving judgment, to alter that transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes, and even matters of style, but also so that the reasons recorded accurately reflect why the judge made the decision that he or she made, even if they were not then properly or fully articulated.
The starting point is that it is orders of the court that express the courts’ decisions. ‘Judgments’, in the popular sense, express only the courts’ reasons for those decisions. (There is an old, technical sense of ‘judgment’ meaning a final decision made at certain kinds of trial, but I am not using the word in that sense.) So it is court orders that are enforced, rather than judgments containing reasons. And appeals to higher courts are appeals against orders that are made by the court, rather than against their reasons. Thus when the judge decides a case, it is the order that is made at the end that is all-important, and the reasons simply explain the basis for the decision. Of course, when an appeal court considers an appeal against an order, it will want to see what the reasons were. But even if the reasons were wrong, the decision might still be right, and in that case the appeal would be dismissed.
It is clear law that a judge who gives reasons for a decision may alter those reasons, indeed sometimes even the decision itself, after having made them known to the parties. So, it has long been the practice for judges to revise transcripts taken of their judgments given in court for the purpose of publication. The courts have made clear that, if there are two reports of a decision available, one containing the judgment as revised by the judge, and the other simply giving a transcript as taken down by the shorthand writer, without revision by the judge, then the revised version will be preferred as more authoritative’

Paul Matthews HHJ
[2017] EWHC 1101 (Ch)
Bailii
England and Wales
Citing:
CitedFairman v Perpetual Investment Building Society HL 1923
The defendants owned a block of flats that were tenanted. The plaintiff lived as a lodger with her sister in one of the flats. She was injured when walking down the steps from her flat; the steps were part of the common property under the control of . .
CitedRoyal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
CitedSpace Airconditioning Plc v Guy and Another CA 14-Dec-2012
‘if a judgment contains what the judge acknowledges is an error when it is pointed out, the judgment should be corrected, unless there is some very good reason for not doing so. A judgment should be an accurate record of the judge’s findings and of . .
CitedRe L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
CitedGreenwich Millennium Village Ltd v Essex Services Group Plc and Others CA 11-Jul-2014
Appeal by a labour only sub-sub-sub-contractor against a decision of Mr Justice Coulson that it is liable to indemnify the respondent, who was the party above it in the contractual chain, for workmanship defects which caused flooding in a block of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 November 2021; Ref: scu.583989

Norwich Pharmacal Co and others v Customs and Excise Commissioners: HL 26 Jun 1973

Innocent third Party May still have duty to assist

The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their patents.
Held: Disclosure should be ordered. If someone, even innocently became involved in tortious acts committed by third parties, he became under a duty assist in discovery of the identity of the third party wrongdoers. How the information was acquired was not relevant. Duties of confidence owed by taxation authorities could be overborne if necessary.
Lord Reid said: ‘So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?’ to which he answered ‘Yes’.
Referring to the authorities, he said: ‘They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.
I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him. It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has himself incurred some minor liability. I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that.’
Lord Kilbrandon: ‘There is no suggestion that in so doing he is pretending to exercise any right of relief against the discoverers.
In my opinion, accordingly, the respondents, in consequence of the relationship in which they stand, arising out of their statutory functions, to the goods imported, can properly be ordered by the court to disclose to the appellants the names of persons whom the appellants bona fide believe to be infringing these rights, this being their only practicable source of information as to whom they should sue, subject to any special right of exception which the respondents may qualify in respect of their position as a department of state. It has to be conceded that there is no direct precedent for the granting of such an application in the precise circumstances of this case, but such an exercise of the power of the court seems to be well within broad principles authoritatively laid down. That exercise will always be subject to judicial discretion, and it may well be that the reason for the limitation in practice on what may be a wider power to order discovery, to any case in which the defendant has been ‘mixed up with the transaction’, to use Lord Romilly’s words, or ‘stands in some relation’ to the goods, within the meaning of the decision in Post v Toledo, Cincinnati and St Louis Railroad Co (1887) 11 NERep 540, is that that is the way in which judicial discretion ought to be exercised.’
Viscount Dilhorne referred to the antiquity of the mere witness rule and considered the principle of whether disclosure could be ordered in the case before him: ‘discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it. The ‘mere witness’ rule has lost a great deal of its importance since the Common Law Procedure Act removed the bar to persons interested giving evidence, but it still has significance. Someone involved in the transaction is not a mere witness. If he could be sued, even though there be no intention of suing him, he is not a mere witness . . Are the respondents to be regarded as so involved in this case? I think the answer is yes.’

Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Cross of Chelsea and Lord Kilbrandon
[1974] AC 133, [1973] 3 WLR 164, [1973] 2 All ER 943, [1973] UKHL 6, [1974] RPC 101, [1973] FSR 365
lip, Bailii
England and Wales
Citing:
AppliedPost v Toledo, Cincinnati and St Louis Railroad Co 1887
Powers of discovery where third party is involved in some way in the matters underlying the issue. . .
AppliedOrr v Diaper 1876
The plaintiff had a cause of action against the defendant and sought discovery of the name of a third party known to the defendant so that that third party could be joined in. ‘In this case the Plaintiffs do not know, and cannot discover, who the . .
AppliedUpmann v Elkan CA 5-Jun-1871
The defendant freight forwarding agent was innocently in possession of consignments of counterfeit cigars in transit to Germany through a London dock. The action was not for discovery, but for an order restraining the forwarder from releasing the . .
At First InstanceNorwich Pharmacal Co and others v Customs and Excise Commissioners ChD 1972
The court considered an application for an order that the other party identify third party wrong-doers. . .
Appeal from (reversed)Norwich Pharmacal Co and others v Customs and Excise Commissioners CA 2-Jan-1972
The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names.
Held: Buckley LJ . .

Cited by:
CitedCamelot Group plc v Centaur Communications Limited CA 23-Oct-1997
An order for a journalist to disclose the name of an employee disclosing his employer’s information, may be made where there was a need to identify a disloyal employee. Here drafts of accounts had been released to embarrass the company. The . .
CitedTotalise Plc v The Motley Fool Limited and Interative Investor Limited (2) CA 19-Dec-2001
The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court . .
CitedAustralia and New Zealand Banking Group Ltd v National Westminster Bank plc and Others ChD 6-Feb-2002
Where an innocent party had been joined in an action in order to ensure proper discovery, he should be excused from the action once he had complied with the discovery required. It would be wrong to continue his involvement against an unsupported . .
CitedFinancial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
AppliedAshworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
CitedArsenal Football Club plc and Others v Elte Sports Distribution Ltd ChD 10-Dec-2002
The claimant alleged that the respondent had unlawfully made use of photographs of its footballers in a calendar. The respondent asked the court to strike out the claim as merely speculative, and the claimant sought pre-action disclosure.
CitedBritish Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
FollowedLoose v Williamson 1978
. .
FollowedRCA Corporation v Reddingtons Rare Records 1974
Interlocutory relief on the basis of the Norwich Pharmacal principle could be ordered, for example, on motion. . .
CitedBritish Steel Corporation v Granada Television Ltd CA 7-May-1980
Lord Denning MR said that the Norwich Pharmacal case opened ‘a new chapter in our law’ and ‘Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same . .
CitedP v T Limited 1997
The jurisdiction under Norwich Pharmacal is not confined to circumstances where there has been tortious wrongdoing and is now available where there has been contractual wrongdoing. . .
CitedCarlton Film Distributors Ltd v VCI Plc 2003
. .
CitedMitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
CitedCHC Software Care v Hopkins and Wood 1993
The jurisdiction to require discovery of documents from a third party is not restricted to seeking information from an innocent third party. The third party may himself be one of the wrongdoers. . .
CitedAoot Kalmneft v Denton Wilde Sapte (A Firm) Merc 29-Oct-2001
The court ordered relief by way of disclosure against a third party: ‘In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why the . .
CitedMersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
CitedMicrosoft Corporation v Ling and others ChD 3-Jul-2006
The claimant sought damages against the respondent for various infringements in sales of unlicensed products, and also additional damages. The defendant argued that Microsoft’s licensing arrangements acted anti-competively.
Held: ‘the . .
CitedHughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
CitedMersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
CitedDobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
CitedSheffield Wednesday Football Club Ltd and others v Hargreaves QBD 18-Oct-2007
The defendant operated a web forum in which posters posted defamatory messages about the claimants. The claimants sought an order disclosing the contact details of the members of the forum. The owner of the forum said he had undertaken not to . .
CitedSmith v ADVFN Plc QBD 13-Mar-2008
Order re case management application. The claimant said he had been defamed on an internet forum run by the defendants, and sought orders for disclosure of the identities of the posters to the website. The operator said that special software might . .
CitedSmith v ADVFN Plc CA 15-Apr-2008
The claimant complained of defamation on internet bulletin boards. He made an application to require the forum operator to disclose IP addresses and other information about posters under a Norwich Pharmacal order. Further applications were made for . .
CitedSmith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
CitedMohamed, 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 . .
CitedBanker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
CitedArab Monetary Fund v Hashim and On (No.5) 1992
The rule in Norwich Pharmacal does not provide a general right of discovery. Hoffman J cited Lord Reid in Norwich Pharmacal and said: ‘The reference to ‘full information’ has sometimes led to an assumption that any person who has become mixed up in . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
CitedFinancial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .
CitedUnited Company Rusal Plc and Others v HSBC Bank Plc and Others QBD 1-Mar-2011
The claimants sought an order for discovery here from a third party of documents required to support proposed litigation in Russia.
Held: Tugendhat J said: ‘the court [has] to be as satisfied as it can be, having regard to the limitations . .
CitedThe Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
CitedThe President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
CitedMedia Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
CitedBritish Telecommunications Plc and Another, Regina (on The Application of) v The Secretary of State for Business, Innovation and Skills Admn 20-Apr-2011
The claimant sought judicial review of legislative provisions requiring Internet Service Providers to become involved in regulation of copyright infringements by its subscribers. They asserted that the Act and proposed Order were contrary to . .
CitedThe Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
CitedVarious Claimants v News Group Newspapers Ltd and Others ChD 12-Jul-2013
The claimants sought disclosure by the police of information relating to the phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper. They were wanting to make claims against the respondent, but . .
CitedCartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Information, Customs and Excise

Leading Case

Updated: 01 November 2021; Ref: scu.174124

Dimes v Proprietors of Grand Junction Canal and others: HL 26 Jun 1852

The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the grounds that the Lord Chancellor was disqualified.
Held: After consultation, Lord Cottenham was disqualified from sitting as a judge in the cause because he had an interest in the suit. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no inquiry as to the circumstances which led to Lord Cottenham sitting.
Lord Campbell said: ‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.’

Lord Brougham, Lord Campbell
(1852) 3 HL Cas 759, [1852] EngR 789, (1852) 3 HLC 759, (1852) 10 ER 301
Commonlii
England and Wales
Citing:
See AlsoDimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
See AlsoThe Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
Appeal fromThe Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See AlsoDimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See AlsoIn Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .

Cited by:
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedLocabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Principal JudgmentDimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .
CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
CitedP v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.183299

Jones v National Coal Board: CA 17 Apr 1957

The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That does not mean the judge is ‘a mere umpire to answer the question ‘How’s that?”.
Lord Denning MR said: ‘His object, after all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’? And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations?’
. . and ‘A judge’s part . . is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”

Lord Denning MR
[1957] 2 QB 55, [1957] EWCA Civ 3, [1957] 2 All ER 155, [1957] 2 WLR 760
Bailii
England and Wales
Citing:
CitedYuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .

Cited by:
CitedLondon Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
CitedMichel v The Queen (The Court of Appeal of Jersey) PC 4-Nov-2009
michel_rPC2009
(Jersey) The defendant appealed, complaining that the number and character of the judge’s interventions in his trial for money laundering had made it unfair.
Held: The conviction was quashed and the case remitted for a decision as to . .
CitedWatson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .
CitedRe S (Children, W and T) CA 14-May-2014
The parents sought leave to appeal against a care order made on a finding of sexual abuse of one of the children, saying that the court had failed to allow for the inherent improbability of the facts alleged. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.242455

Henderson v Novo Banco SA: ECJ 2 Mar 2017

Defendant to show service failure was unfair

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Service of judicial and extrajudicial documents – Regulation No 1393/2007 – Articles 8, 14 and 19 – Postal service of a document instituting the proceedings – Failure to provide a translation of the document – Annex II – Standard form – None – Consequences – Service by registered letter with acknowledgement of receipt – Failure to return acknowledgement of receipt – Receipt of document by a third party – Conditions of validity of the proceedings

M Berger P
[2017] WLR(D) 148, [2017] EUECJ C-354/15, ECLI:EU:C:2017:157
Bailii, WLRD
Parliament and Council Regulation (EC) No 1393/2007
European

Litigation Practice, International

Updated: 01 November 2021; Ref: scu.579677

Salekipour and Another v Parmar and Another: QBD 23 Jun 2016

This appeal raises a novel point as to the jurisdiction of the county court to rescind a judgment in earlier county court proceedings on the grounds of perjury and subornation of a witness.
Held: ‘i) The county court is a creation of statute and unlike the High Court has no inherent jurisdiction;
ii) . . the High Court has jurisdiction to hear proceedings for rescission of a previous decision on the grounds of fraud;
iii) The more common means of challenging a judgment obtained by fraud is by way of an appeal, but the remedy of a fresh action for rescission of a judgment remains available in the High Court;
iv) In recent cases, the Court of Appeal has doubted whether the county court has jurisdiction to rescind its own decisions, but there is no decided case to that effect;
v) The county court does have jurisdiction to set aside a deed of release of a judgment debt obtained by fraud.’

Garnham J
[2016] EWHC 1466 (QB)
Bailii

Litigation Practice

Updated: 01 November 2021; Ref: scu.565985

JIH v News Group Newspapers Ltd: QBD 5 Nov 2010

The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition advanced before him by Mr Tomlinson for JIH that: ‘Where the court has accepted that the publication of private information should be restrained, if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways:
(1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised;
(2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified.’
‘where the complaint is one of press intrusion, ‘even when that information is not secret or unknown . . the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person but also of those who are involved with him.’

Tugendhat J
[2010] EWHC 2818 (QB), [2011] EMLR 9
Bailii
England and Wales
Citing:
CitedGray v UVW QBD 21-Oct-2010
Application was made for the name of the defendant not to be published.
Held: To the extent that a claimant seeks an order for the anonymisation of any reports of the SOPO proceedings, then that jurisdiction derives from section 6(1) of the . .
CitedRegina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedMicallef v Malta ECHR 15-Oct-2009
‘The Court reiterates that for Article 6(1) in its ‘civil’ limb to be applicable, there must be a dispute over a ‘civil right’ which can be said, at least on arguable grounds, to be recognised under domestic law’
Preliminary proceedings or . .
CitedX and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .

Cited by:
See AlsoJIH v News Group Newspapers Ltd (No. 2) QBD 18-Nov-2010
Explanation of reasons for anonymity order. . .
Appeal fromJIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
CitedGoldsmith and Another v BCD QBD 22-Mar-2011
The claimants sought damages, alleging that the defendants had hacked into their e-mail accounts. The defendant now sought protection of her identity through anonymisation of the case.
Held: Granted. . .
CitedTSE and ELP v News Group Newspapers Ltd QBD 23-May-2011
The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach . .
CitedGoodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
CitedIn re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
CitedNNN v Ryan and Others QBD 20-Mar-2013
The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .
CitedABC Ltd v Y ChD 6-Dec-2010
There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties . .
CitedPJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 01 November 2021; Ref: scu.425793

CTB v News Group Newspapers Ltd and Another (3): QBD 23 May 2011

ctb_ngn4QBD11

The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. The purposes of such a privacy order included also protecting the claimant and his family from harassment. Though some of the purpose of the order might have been lost, if ‘the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.’

Tugendhat J
[2011] EWHC 1334 (QB)
Bailii
Citing:
CitedCTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
ctb_ngn2QBD11
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
See AlsoCTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Cited by:
CitedPJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 31 October 2021; Ref: scu.440195

Morelle Ltd v Wakeling: CA 1955

The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle applies to decisions given in ignorance of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. In this case no such manifest error was found.
Raymond Evershed MR: ‘As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked . . As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: Here was a manifest slip or error.’

Raymond Evershed MR, Denning LJ, Jenkins LJ, Morris LJ and Romer LJ
[1955] 2 QB 379, [1955] EWCA Civ 1, [1955] 2 WLR 672, [1955] 1 All ER 708
Bailii
England and Wales
Citing:
Per incuriamMorelle Ltd v Waterworth CA 1955
The court was asked (1) Was the assurance to the Plaintiff Company of the unexpired residue of a term of years in house property in London an assurance of land in mortmain within the terms of section 1 of the Mortmain and Charitable Uses Act, 1888? . .
CitedYoung v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .

Cited by:
CitedRoland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
CitedAtkins v Director of Public Prosecutions; Goodland v Director of Public Prosecutions Admn 8-Mar-2000
For possession of an indecent image of a child to be proved, it was necessary to establish some knowledge of its existence. Images stored without the defendant’s knowledge by browser software in a hidden cache, of which he was also unaware, were not . .
CitedDesnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedBaxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.242932

Yuill v Yuill: CA 1944

Appellate Court’s Caution in Reassessing Facts

The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning a decision at first instance as to the facts.
Lord Greene MR said: ‘It can, of course, only be in the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.’
and ‘A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.’

Lord Greene MR, MacKinnon and Du Parcq LJJ
[1944] P 15, [1945] 1 All ER 183, 61 TLR 176
England and Wales
Cited by:
ApprovedThomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
CitedTutt and Others vTutt CA 14-Oct-1997
The parties disputed a boundary between their properties. It followed a prolonged and expensive dispute over what was a small piece of land.
Held: Acknowledging the caution required before overturning a judge’s decision on the facts, there . .
CitedCairnstores Ltd Generics (UK) Ltd and Another v Aktiebolaget Hassle CA 22-Oct-2002
Two patents had been invaildated for obviousness. They related to coatings on medicinal pills. The patent holder said the judge’s interruptions indicated bias.
Held: The sumissions were unjustified. The interventions were by no means . .
CitedAkerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
CitedLondon Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
CitedJones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
CitedRe S (Children, W and T) CA 14-May-2014
The parents sought leave to appeal against a care order made on a finding of sexual abuse of one of the children, saying that the court had failed to allow for the inherent improbability of the facts alleged. . .
ApprovedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedDB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice

Leading Case

Updated: 31 October 2021; Ref: scu.186351

Dowson and Others v Northumbria Police: QBD 30 Apr 2009

Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have arisen from different facts.
Held: Amendments were allowed where they arose from the facts and events already pleaded. Those rasing other issues which were now out of time were rejected.

Coulson J
[2009] EWHC 907 (QB)
Bailii
Protection From Harassment Act 1997, Limitation Act 1980
England and Wales
Citing:
CitedBrookfield Properties Limited v Newton 1971
An allegation of negligence against an architect in the design of a building arose out of the same or substantially the same facts as an allegation of negligence against him in respect of the supervision of the construction of the same building, so . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedThe Convergence Group Plc and Another v Chantrey Vellacott (a Firm) CA 16-Mar-2005
An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for . .
CitedHughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
CitedPalmer (Administratrix of the Estate of Rose Frances Palmer) v Tees Health Authority and Hartlepool and East Durham NHS Trust CA 2-Jun-1999
A claim for damages on behalf of a murdered child’s estate and the child’s mother for psychiatric damage against a health authority for negligence in having failed to manage a psychiatric outpatient who had abducted and murdered the child, was bound . .
CitedCobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
CitedAldi Stores Ltd v Holmes Buildings Plc CA 1-Dec-2003
What makes a claim a ‘new claim’ as defined in section 35(2) of the Limitation Act 1980 is not the newness of the case according to the type or quantum of the remedy claimed, but the newness of the cause of action that it involves. A cause of action . .
CitedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedHarris v Bolt Burdon (A Firm) CA 2-Feb-2000
A case is suitable for striking out which raises an unwinnable case, where continuance of the proceedings is without any possible benefit and would waste resources on both sides. . .
CitedSenior and Another v Pearson and Ward (A Firm) CA 26-Jan-2001
An amendment outside the limitation period against solicitors alleging a failure to advise was permitted, where the original allegation was simply that the solicitors had acted without or in disregard of instructions. . .
CitedE 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 . .
CitedHoechst United Kingdom Ltd v Inland Revenue ChD 11-Apr-2003
If an amendment to a pleading proposes a new claim which does not arise out of the same or substantially the same facts, the court has no discretion and may not allow the amendment. . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Limitation, Litigation Practice

Updated: 31 October 2021; Ref: scu.341875

E M Bowden’s Patents Syndicate Ltd v Herbert Smith and Co: 1904

Where an equitable assignee sues a third party, the assignor must be joined as a defendant. The Plaintiff as the equitable owner of a patent was given liberty to amend its pleading by joining the legal owner, (failing which the Plaintiff’s case would have been dismissed), but on terms that the Plaintiff paid the Defendant’s costs of the two days of hearing up to that point.
Warrington J
[1904] 2 Ch 86
England and Wales
Cited by:
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.416012

Ex parte Mersey Docks and Harbour Board: 1899

AL Smith LJ said: ‘The matter [ie, of interpleader] now depends upon the provisions of Order LVII, r.1’
AL Smith LJ
[1899] 1 QB 546
England and Wales
Cited by:
CitedCelador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement) QBD 16-Feb-2018
Equitable Interpleader
Equitable Interpleader – Enforcement – controlled goods – interpleader – equity – common law – Civil Procedure – Rules of Supreme Court – title to goods – third party – Writ – High Court Enforcement Officers . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.605167

F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry: HL 1975

No Indemnity for misadministration

The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
Cited by:
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedBugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
CitedSmithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedThe Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068

McDonald v Secretary of State for Scotland: IHCS 2 Feb 1994

The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. The 1947 Act deprived Scottish litigants of their previous right to obtain interdict and interim interdict against the Crown. Orders to that effect could not be pronounced in either the sheriff court or the Court of Session. An House of Lords decision on an action against a state was not necessarily binding in Scotland. There were formidable difficulties in the way of a submission that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 did not constitute civil proceedings within the meaning of section 21.
Lord Justice Clerk Ross
Times 02-Feb-1994, 1994 SC 234
Crown Proceedings Act 1947 21
Citing:
Appeal fromMcDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
CitedM v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .

Cited by:
CitedDavidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Appealed toMcDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
CitedPetition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions SCS 26-Oct-2001
Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make . .
CitedReclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Updated: 26 October 2021; Ref: scu.83524

Rendall v Blair: 1890

Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all’ and ‘It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last.’
The legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory.
Bowen LJ
(1890) 45 Ch D 139
Charitable Trusts Act 1853 17
Cited by:
ConsideredIn re Saunders (A Bankrupt) ChD 1997
Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had . .
CitedSeal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
CitedAdorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.226024

P v T Ltd: ChD 7 May 1997

A order for the disclosure of documents can be proper if it is the only method of founding proceedings against a third party, even though there might be no sufficient proof without the documents. An order was made because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action. In extreme circumstances, it was legitimate to exercise the power for disclosure in a case where not only the name of the tortfeasor but the full nature of the suspected tort was unknown.
Sir Richard Scott V-C
Times 07-May-1997, [1997] 1 WLR 1309, [1997] 4 All ER 200
England and Wales
Cited by:
CitedAshworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
CitedGregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
CitedAxa Equity and Life Assurance Plc Society Plc and others v National Westminster Bank Plc and others CA 7-May-1998
Discovery of documents from third parties. Morritt LJ said that an order might be made where the party holding the documents could be said to have involvement in terms of ‘causing or facilitating’ the wrong. . .
CitedFinancial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.84530

Macnaughton v Macnaughton’s Trustees: IHCS 1953

It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The Courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.’
Lord Justice-Clerk Thomson
[1953] SC 387
Scotland
Cited by:
CitedRegina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
CitedBritish American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
CitedClarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.184054

Trafigura Beheer Bv v Kookmin Bank Co: ComC 27 Jul 2006

Application for a post-trial anti-suit injunction restraining proceedings brought by the defendant (‘Kookmin’) in Seoul Central District Court.
Field J
[2006] EWHC 1921 (Comm), [2007] 1 Lloyds Rep 669
Bailii
England and Wales
Citing:
See AlsoTrafigura Beheer Bv v Kookmin Bank Co ComC 5-Aug-2005
Entitlement to anti-suit injunction. . .
CitedTrafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.245436

Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited: ChD 27 May 1999

Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that settlement.
Times 19-Jul-1999, [1999] EWHC Ch 229
Bailii
England and Wales
Cited by:
Appeal fromHeaton and others v AXA Equity and Law Life Assurance Society Plc and Another CA 19-May-2000
Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.136036

Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another: CA 19 May 2000

Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the action against the remaining defendant. In such an action where the claimant had received full compensation the defendant in the second action could seek a contribution from the defendant in the first.
Times 07-Jun-2000, [2000] EWCA Civ 164, [2000] 3 WLR 1341, [2001] Ch 173, [2001] CP Rep 10, [2000] 4 All ER 673, [2000] CPLR 505
Bailii
Civil Liability (Contributions) Act 1978
England and Wales
Citing:
CitedJameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Appeal fromHeaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited ChD 27-May-1999
Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that . .

Cited by:
Appeal fromHeaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Updated: 10 October 2021; Ref: scu.147197

Ropac Ltd v Inntrepreneur Pub Co and Another: ChD 7 Jun 2000

There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a retrospective extension of time to comply with the order.
Held: The court retained the power to grant an order for extension of time even though the parties had previously agreed the terms of an ‘unless’ consent order and it had expressed time to be of the essence. The court’s case management powers had to be read in the light of the overriding objective as expressed in the Rules. Under the RSC the order in the case before him was in sufficiently clear terms to be a binding consent order with which the court would only have interfered in circumstances which would justify interference with a contract. Under the CPR however, the court had jurisdiction to extend time: ‘To my mind, the CPR therefore gives the Court rather more wide- ranging, more flexible powers than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objective to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that this means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.’
Neuberger J set out the process he had to apply to to extend time in respect of a consent order. He said at: ‘First, at least in general, if the order was a genuine consent order, that is representing a contractual agreement between the parties, and stated that, if a party did not do something within a specified time, then his claim or defence would be struck out or that there would be some other sanction, that represented a contract with which the court had no power to interfere, save in circumstances in which the court has power to interfere with a contract. That seems to me to be the effect of the judgments in Purcell v FC Trigell Limited [1971] 1 QB 359 – see at 365G per Winn LJ and 366D per Buckley LJ .’
Neuberger J
Times 21-Jun-2000, Gazette 29-Jun-2000, [2001] LandTR 10
Civil Procedure Rules 81
England and Wales
Citing:
CitedPurcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
CitedSiebe Gorman and Co Limited v Pneupac Limited CA 1982
Lord Denning MR discussed the meaning of ‘consent order’ saying: ‘There are two meaning to the words ‘by consent’. One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only . .
CitedTigner Welsh London Company Limited v Spiro 1992
. .

Cited by:
CitedDi Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
CitedWeston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
CitedCommunity Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
ccne_durhamCA10
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
CitedWatson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.88860

Anglo Eastern Trust Ltd v Kermanshahgi: ChD 2002

An asset freezing order restrains the defendent from dealing with his assets but does not prevent him from borrowing money, thereby increasing his overall indebtedness.
Neuberger J
[2002] EWHC 1702 (Ch)
England and Wales
Cited by:
CitedJSC 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: 30 September 2021; Ref: scu.591723

Martin v Kaisary and Another (1): CA 16 Mar 2005

Substitution of other party after limitation period expiry. The court considered the Law Committee’s recommendations on limitation and noted the intention to allow the addition of defendants out of time where this might validate a claim.
Brooke LJ
[2006] PIQR 5, [2005] EWCA Civ 594
Bailii
Limitation Act 1980
England and Wales
Cited by:
See AlsoMartin v Kaisary and Another QBD 5-Apr-2005
. .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.226044

BPE Solicitors and Another v Gabriel: SC 17 Jun 2015

Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued the action, but lost, he would not become personally liable for the costs in the lower courts.
Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKSC 39, [2015] 4 Costs LO 467, [2015] WLR(D) 259, [2015] AC 1663, [2015] 4 All ER 672, [2015] BPIR 779, [2015] 3 WLR 1, UKSC 2014/0026
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
Constitutional Reform Act 2005 40(5), upreme Court Rules 2009 46
England and Wales
Citing:
Appeal fromGabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
CitedBorneman v Wilson CA 1884
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction . .
CitedSchool Board for London v Wall Brothers CA 1891
. .
CitedHeath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
CitedTrustee of Property of Vickery (a Bankrupt) v Modern Security Systems Limited CA 15-Oct-1997
A trustee in bankruptcy will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution . .
CitedIn re Bluck, Ex parte Bluck 1887
The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made . .
CitedIn re A Debtor (No 68 of 1911) 1911
. .
CitedIn re Pitchford 11-Jan-1924
. .
CitedAiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
CitedGlenister 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 . .
CitedIn re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .

Cited by:
CitedPlevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.549064

Priddle v Fisher and Sons: CA 1968

The appellant had arranged to be represented at an industrial tribunal hearing by a trade union representative with whom he intended to travel to the hearing. However, unfortunately the union representative was unwell on the day of the hearing and unable to make the journey. The appellant himself set off on his own intending to conduct his own case but he was unable to complete the journey because of snow. He managed to get a message through to the tribunal telling the tribunal office that the trade union representative would not be appearing, and that he himself had problems getting there. He did not formally apply for an adjournment.
Held: The court overturned the decision of the industrial tribunal to proceed with the case in the absence of the appellant, because they said that the tribunal should have considered the telephone message as amounting to an application to adjourn, even though he had not asked expressly for an adjournment. The tribunal had refused to adjourn because there had been no express request for an adjournment. The exercise of discretion by a lower court may not be appealed in the absence of an error of law. In this case such an error was found.
Lord Parker CJ
[1968] 1 WLR 1478, [1968] 3 All ER 506
England and Wales
Cited by:
CitedTokyo Diner Plc v S Matsumoto EAT 3-May-2001
The matter was due to come on for preliminary hearing. The respondent’s solicitor was summoned to a medical appointment only the evening before. She attended the tribunal, but left before the case was called on. There was a dispute as to whether . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183461

Flower v Lloyd: CA 1877

The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits suggesting that, on that visit, the defendant had fraudulently concealed a part of the process. The plaintiffs sought to have the appeal reheard in a ‘bill of review’.
Held: The application failed. Applying the 1873 Act, the High Court could exercise the powers formerly conferred on the Court of Chancery and rectify any miscarriage by setting aside the judgment on grounds of fraud. That was the appropriate remedy; reopening the appeal was not.
Lord Justice James made general observations about the proper procedure where a judgment was allegedly obtained by fraud: ‘I agree with what has been said by the Master of the Rolls, that in the case of a decree (or judgment as we now call it) being obtained by fraud there always was a power, and there still is a power, in the Courts of Law in this country to give adequate relief. But that must be done by putting in issue that fraud, and that fraud only. You cannot go to your adversary and say ‘You obtained a judgment by fraud and I will have a re-hearing of the whole case’ until that fraud is established. The thing must be tried as a distinct and positive issue; ‘You, the defendants’ or ‘You, the plaintiff’ obtained that judgment or decree in your favour by fraud; you bribed the witness, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud.’ That would be tried like anything else by evidence properly taken directed at that issue and wholly free from and unembarrassed by any of the matters originally tried.’
Jessell MR, James and Baggallay JJ
[1877] 6 ChD 297
Judicature Act 1873
England and Wales
Cited by:
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedJonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
CitedCouwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
CitedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
CitedSingh 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.182177

Twycross v King: 25 Nov 1844

Plaintiff, having delivered a replication to several pleas, concluding to the country as to each plea but traversing one with a special inducement, added the similiters, made up and delivered the issue, and gave notice of trial. Defendant struck out the similiters, and gave notice thereof to plaintiff, But did not deliver a rejoinder or notice of his intetition to rejoin. Afterwards defendant craved oyer of an indenture mentioned in the special inducement, and delivered a rejoinder with a demurrer to the replication containing that inducement, and a similiter as to the rest; and also gave notice that he should not appear on the trial, but should move to set aside any trial bad. Plaintiff proceeded to trial, and obtained a verdict, defendant not appearing. The Court set aside the verdict and trial, with costs.
[1844] EngR 1049, (1844) 6 QB 663, (1844) 115 ER 250
Commonlii
England and Wales

Updated: 29 August 2021; Ref: scu.305641

Ryan and Another v Friction Dynamics Ltd and others: ChD 14 Jun 2000

When granting asset freezing orders in support of proceedings in a foreign jurisdiction the court should exercise caution, particularly under the section since the court would not have full knowledge of the issues. Where good grounds existed, and comity required a court to grant an order, the requirements of risk of dissipation, and of a good case must be met; an order might be made even if refused by a foreign court, and the existence of a world-wide order already did not prevent an English court granting a local order.
Times 14-Jun-2000
Civil Jurisdiction and Judgments Act 1982 25
England and Wales

Updated: 29 August 2021; Ref: scu.88941