International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India: ComC 16 Feb 1994

cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder of party – proceedings a nullity – no power

Judges:

Waller J

Citations:

16 February 1994, Unreported, [1996] 2 Lloyds Rep 474

Jurisdiction:

England and Wales

Cited by:

AffirmedInternational Bulk Shipping and Services Ltd v President of India and Another CA 11-Dec-1995
Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 22 May 2022; Ref: scu.182567

Autexpo v Commission C-82/87: ECJ 8 May 1987

Order – 1. As a condition for the grant of an interim measure suspending the operation of a decision, article 83(2) of the rules of procedure requires that an application for such a measure must state the factual and legal grounds establishing a prima facie case for the interim measure applied for and the circumstances giving rise to urgency. The urgency required in regard to an application for interim measures must be assessed in the light of the need to adopt such measures in order to avoid serious and irreparable damage to the party requesting those measures.
2. The issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures but should be reserved for the examination of the main application so as not to prejudge the substance of the case; however, where an objection is raised that the main application to which the application for interim measures is an adjunct is manifestly inadmissible, it is necessary to establish the existence of certain factors which support the conclusion that the main application is prima facie admissible.

Citations:

C-82/87, [1987] EUECJ C-82/87R

Links:

Bailii

Jurisdiction:

European

Litigation Practice

Updated: 22 May 2022; Ref: scu.134198

Steele v Steele: ChD 5 Jun 2001

The court gave the following points for consideration as to whether to order determination of a preliminary issue. Could the determination of a preliminary issue dispose of the whole or any part of the case, or could it significantly reduce the costs? If it related to an issue of law, what was the extent of factual differences to be settled before that issue could be presented, or to what extent were the facts agreed? Would the process unreasonably fetter either party or the court later in the case? Might the enquiry increase costs, or delay, or lead to amendments in the pleadings, and was it just or right to order trial of the preliminary issue?

Citations:

Times 05-Jun-2001

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 May 2022; Ref: scu.89533

Stevens v School of Oriental and African Studies and others: ChD 2 Feb 2001

It was not unfair or a denial of the applicant’s human rights, to strike out a second action which differed only marginally in the parties involved, from an earlier action already struck out by the court for delay, and where the claimant had not yet satisfied a costs order made against him arising from that earlier action.

Citations:

Times 02-Feb-2001

Jurisdiction:

England and Wales

Natural Justice, Litigation Practice, Human Rights

Updated: 20 May 2022; Ref: scu.89548

Starmer v Bradbury: CA 4 Apr 1994

District Judge holding arbitration has full discretion as to conduct of case. Validity of patent is res judicata – not to be re-opened. An appeal against a small claims arbitration must be for misconduct only and not on the facts.

Citations:

Times 11-Apr-1994, Ind Summary 04-Apr-1994, [1994] FSR 458

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 May 2022; Ref: scu.89506

Cary v Commissioner of Police for The Metropolis Equality and Human Rights Commission: CA 17 Jul 2014

In a claim for sex discrimination by the police the court was asked whether the judge in the Central London County Court was right to overrule Mr Cary’s objection to a particular individual acting as an assessor on the ground that, for this type of case, an assessor is required to have specific experience and expertise in relation to issues of discrimination on the grounds of same sex sexual orientation.

Citations:

[2014] EWCA Civ 987, [2014] WLR(D) 320, [2014] CP Rep 42, [2015] ICR 71, [2014] Eq LR 707

Links:

Bailii, WLRD

Statutes:

Equality Act (Sexual Orientation) Regulations 2007

Jurisdiction:

England and Wales

Discrimination, Litigation Practice

Updated: 20 May 2022; Ref: scu.534415

Dubai Bank Ltd v Galadari (No 2): CA 1990

An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the Government of Dubai. The bank complained that large amounts of interest on certain deposits had been unlawfully diverted into their own pockets. The bank obtained an ex parte Mareva injunction and ancillary orders for disclosure of assets, but this was later discharged by Morritt J. on the grounds that important facts known to the Government of Dubai had not been disclosed.
Held: The court refused to interfere with his exercise of his discretion. It was submitted on behalf of the bank that even where there had been non-disclosure on an ex parte application, the court should only discharge an injunction or refuse to continue an injunction if the court was satisfied that the non-disclosure was a deliberate attempt to mislead the court or a wilful failure to inquire as to the obvious. The phrase ‘whose . . affidavits’ extends to any affidavit sworn by a deponent who is not a party, but which is procured by and filed or used on behalf of a party. A copy of an unprivileged document does not become privileged merely because the copy is made for litigious purposes.
Dillon LJ said: ‘It is now accepted in this Court that, even if there has been material non-disclosure, the Court has a discretion whether or not to discharge an order obtained ex parte and a discretion whether or not to grant fresh injunctive relief Discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the Court to have been material.’
Staughton LJ said that the bank had put forward a good arguable case, and a prima facie case for likelihood of dissipation: ‘In any event there was also non-disclosure to be considered before the injunction was continued. The authorities show plainly that non-disclosure will, in an appropriate case, not only be a ground for discharging an ex parte order, but also a ground for refusing to make a fresh order inter partes. At least in one respect there was here non-disclosure which was in my view both serious and culpable. The Galadaris had specified what they said was their defence to the claim, and there can scarcely be any more important topic of disclosure than that. As to culpability, it is said the Dubai Bank did not know the facts, and that those whom they consulted in the Government of Dubai had forgotten them. But the letters were still in the Government’s possession . . Once serious and culpable non-disclosure was established, the Judge had a balancing task to perform. On the one hand if justice required that a fresh injunction should be granted (which in the Judge’s view it did not, but the contrary was arguable), it might be thought unjust to refuse one on the grounds of non-disclosure. On the other hand the Courts must uphold and enforce the duty of disclosure, as a deterrent to others, if they are not to be deceived on ex parte applications. The conflict between those principles is well illustrated in a passage from the judgment of Lord Justice Woolf in the Behbehani case.’

Judges:

Slade LJ, Dillon LJ

Citations:

[1990] 1 WLR 731, [1990] Ch 98, [1990] 1 Lloyds Rep 120

Statutes:

RSC (NI) Order Rulle 11

Jurisdiction:

England and Wales

Cited by:

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 . .
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 . .
See AlsoDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Litigation Practice

Updated: 20 May 2022; Ref: scu.247440

Re Palmer (A Deceased Debtor), Palmer v Palmer: CA 6 Apr 1994

Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. The wife argued that by the doctrine of survivorship the house was already hers. The administrator said that the effect of the order was backdated so as to have severed the joint tenancy before the death, and that therefore the deceased’s interest passed into the administration.
Held: The appeal was allowed. The rule that a judicial act takes effect from the first moment of the day on which it is made is not universal. ‘the time has come to say the fiction should have no place when the true facts are known, at least in cases where the court’s jurisdiction is concerned. . . The respondent’s submission in the present case is that the insolvency administration order which was made on the 17th August 1991 is deemed by paragraph 12 of the 1986 Order (Sch.1 Part II) to take effect for the purposes of the vesting of property in the trustee as if it had been made on 22 November 1990, the date of Mr Palmer’s death. To this statutory fiction, it is submitted, must be added the common law fiction that the Order was made at the earliest moment of that day, and therefore whilst Mr Palmer was alive.’ The submission failed.

Judges:

Balcomve LJ, Evans LJ, Roch LJ

Citations:

Independent 06-Apr-1994, [1994] EWCA Civ 15

Links:

Bailii

Statutes:

Insolvency Act 1986 421

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .
CitedWilliams v Hensman 10-Jun-1861
A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy . .
CitedBurgess v Rawnsley CA 15-Apr-1975
. .
CitedWright v Mills 1859
A judgment was signed when the Court’s offices opened at 11 am but the defendant had died at 9.30 the same morning. The Court held that the judgment was regular, applying the rule that judicial acts, being acts of the Crown, have precedence over . .
CitedEdwards v Regina CExc 1854
The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court’s judgment added that even if the . .
CitedShelley’s case; Wolfe v Shelley 1581
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were . .
CitedClarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
CitedClarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
CitedRe Seaford Dec’d CA 1968
A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made. . .
CitedTabernacle Permanent Building Society v Knight 1892
The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 19 May 2022; Ref: scu.85849

Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway: HL 8 Nov 2000

Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope for a further appeal to the House of Lords. It is not the role of the highest court to correct errors in the application of settled law.

Judges:

Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 08-Nov-2000, Gazette 30-Nov-2000, [2000] UKHL 56, [2000] 1 WLR 2222, [2000] 1 All ER 27

Links:

House of Lords, Bailii

Statutes:

Company Directors Disqualification Act 1986 6, Supreme Court Act 1981 18(1A) 31(3), Access to Justice Act 1999 54, Civil Procedure (Amendment Rules) 2000 (SI 221/2000), Appellate Jurisdiction Act 1876 3

Citing:

CitedPractice Direction (Judicial Review: Appeals) CA 1982
The Court gave a practice direction on recourse to the Court of Appeal following refusal of leave to apply for judicial review by a Divisional Court or a single judge, describing such a refusal as ‘appealable to the Court of Appeal’. . .
CitedPractice Direction (Court of Appeal) (Civil Division) CA 19-Apr-1999
As part of the modernisation and reform of civil procedure, all the principal Court of Appeal practice directions are consolidated now into this one document handed down by the court.
‘2. Permission to appeal
2.1 When is permission . .
CitedLane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. 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 . .
CitedIn re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
CitedIn re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.

Cited by:

See AlsoSecretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
See AlsoSecretary of State for Trade and Industry v Eastaway; Re Blackspur Group (No 3), Secretary of State for Trade and Industry v Davies and Others (No 2) CA 13-Sep-2001
. .
See AlsoEastaway v The United Kingdom ECHR 20-Jul-2004
The applicant had been proceeded against after the collapse of companies in which he was involved with very substantial debts. The proceedings had begun in July 1990, and lasted nearly nine years.
Held: Where proceedings could be expected to . .
See AlsoIn Re Blackspur Group Plc; Secretary of State v Eastaway ChD 21-Jun-2001
The director was amongst a group against whom a director disqualification order was sought. He offered an undertaking, but the Secretary of State refused to accept this unless it was accompanied by a statement as to the factual basis on which it was . .
See AlsoEastaway v Secretary of State for Trade and Industry and similar ChD 2-Mar-2006
. .
See AlsoEastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
CitedCooper v HM Attorney General QBD 30-Sep-2008
The claimant sought damages from the court saying that it had failed to properly apply European law. It had rejected his applications for judicial review.
Held: Any failure by the court was not sufficiently manifest to bring the case within . .
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review

Updated: 19 May 2022; Ref: scu.85546

Regina v Bow County Court Ex parte Pelling: QBD 8 Mar 1999

Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to allow him to be present in a chambers appointment; that right belongs to the litigant only. A judge in chambers can exclude a McKenzie friend, but not when in open court.

Judges:

Otton LJ, Steel J

Citations:

Times 08-Mar-1999, [1999] EWHC Admin 181

Links:

Bailii

Citing:

CitedCollier v Hicks 7-Jun-1831
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal . .
CitedMcKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
CitedRe G (Chambers Proceedings: McKenzie friend) CA 10-Jul-1991
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature . .
CitedRe G (Chambers Proceedings: McKenzie friend) CA 10-Jul-1991
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature . .
Not bindingIn Re H (A Minor) (Chambers Proceedings: Mckenzie Friend) CA 6-May-1997
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the . .
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .

Cited by:

Appeal fromRegina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Litigation Practice

Updated: 19 May 2022; Ref: scu.85131

Regina v Bow County Court, Ex Parte Pelling: CA 17 Dec 1999

Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, and not of the McKenzie friend, who must remember the division between friend and advocate. A judge should normally give reasons for refusing to allow a friend to attend.
The court summarised its conclusions: ‘(1) In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require a litigant in person to have the assistance of a McKenzie friend. (2) The position is the same where the proceedings are in chambers unless the proceedings are in private. (3) Where the proceedings are in private then the nature of the proceedings which make it appropriate for them to be heard in private may make it undesirable in the interests of justice for a McKenzie friend to assist. (4) A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend. (5) The assistance of a McKenzie friend is available for the benefit of the litigant in person and whether or not a McKenzie friend is paid or unpaid for his services, he has no right to provide those services; the court is solely concerned with the interests of the litigant in person.’

Judges:

Lord Woolf MR, Brooke and Robert Walker LJJ

Citations:

Times 18-Aug-1999, Gazette 17-Dec-1999, [1999] EWCA Civ 2004, [1999] 1 WLR 1807, [1999] 2 FLR 1126

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

ExplainedMcKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
See AlsoRegina v Bow County Court ex parte Dr Pelling Admn 30-Jun-1998
Dr Pelling applied for leave to challenge a refusal of permission to him to assist an applicant as a McKenzie friend. . .
Appeal fromRegina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
CitedIn Re H (A Minor) (Chambers Proceedings: Mckenzie Friend) CA 6-May-1997
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the . .

Cited by:

CitedNoueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
CitedO and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
See AlsoPelling, Regina (on the Application Of) v Bow County Court CA 22-Jan-2001
Application for permission to appeal from refusal of leave to bring judicial review. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.85133

Practice Statement (Companies Court): ChD 19 Jan 2000

From January 2000, applications in company matters need not be heard only by a companies judge, and matters which had previously been listed on Mondays for this purpose need no longer be so listed. Urgent applications would also be dealt with by the applications judge.

Citations:

Times 19-Jan-2000

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 19 May 2022; Ref: scu.84999

Practice Statement (Supreme Court: Judgments) (No 2): LCJ 2 Dec 1998

Reserved judgments handed down should be marked as such when subject to revision, and could be copied and published freely and without charge once the embargo on copies delivered to parties had been lifted.

Citations:

Times 02-Dec-1998, [1999] 1 WLR 1

Jurisdiction:

England and Wales

Cited by:

CitedRobinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.85005

Practice Note (Chancery Division: Civil Procedure Rules): ChD 4 May 1999

The procedures set down by the new CPR Part 23 should be followed in the interim applications and companies courts. Those appearing should also make themselves aware of the amendments in the new Guide to Chancery Practice.

Citations:

Times 04-May-1999

Statutes:

Civil Procedure Rules Part 23

Jurisdiction:

England and Wales

Litigation Practice

Updated: 19 May 2022; Ref: scu.84977

Murrell v Healy and Another: CA 5 Apr 2001

Documents held by an insurance company after settling a personal injuries claim by the same claimant but as regards a later unconnected claim were admissible, since they went to an issue in the later case, namely the nature and extent of the injury from the first occasion. They were admissible even though they had been used as part of without prejudice negotiations.

Judges:

Waller, Dyson LJJ

Citations:

Times 01-May-2001, [2001] EWCA Civ 486, [2001] 4 All ER 345, [2002] RTR 2

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury, Damages

Updated: 19 May 2022; Ref: scu.84140

Lonhro Plc and Others v Fayed and Others (No 5): CA 6 Oct 1993

The plaintiff sought to amend a conspiracy claim, based on arrangements to publish defamatory statements, by adding a claim for damage to reputation and feelings.
Held: Such a claim could not be made in conspiracy. A Plaintiff’s motives in commencing proceedings, as to whether they constituted an abuse of process, are only assessable by the judge at trial, and not on an interlocutory application. The action was re-instated. ‘[N]o one has a right to a reputation which is unmerited. Accordingly one can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel or slander is presumed; but justification is a complete defence.’
Dillon LJ said: ‘In my judgment, if the plaintiffs want to claim damages for injury to reputation or injury to feelings, they must do so in an action for defamation, not in this very different form of action. Injury to reputation and to feelings is, with very limited exceptions, a field of its own and the established principles in that field are not to be side-stepped by alleging a different cause of action. Justification, truth, is an absolute defence to an action for defamation and it would, in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation. But that would be the consequence if damages for injury to reputation and injury to feelings could be claimed in a ‘lawful means’ conspiracy action. To tell the truth would be wrongful. I see no difference in this regard between general reputation and commercial or business reputation.’

Judges:

Stuart-Smith, Dillon LJ

Citations:

Gazette 06-Oct-1993, Gazette 29-Sep-1993, [1993] 1 WLR 1489

Jurisdiction:

England and Wales

Citing:

CitedFoaminol Laboratories Ltd v British Artide Plastics Ltd 1941
There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation . .

Cited by:

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 . .
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation, Torts – Other

Updated: 19 May 2022; Ref: scu.83189

Memory Corporation v Sidhu (No 2): CA 3 Dec 1999

Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too closely to apportion blame. Here counsel had applied to and misadvised the court on the practice, and documents produced were unreliable and possibly from an unlawful source. Where a defending party risked contempt proceedings, and was ordered to file affidavit evidence in respect of that matter, any claim for privilege against self-incrimination should be made before the affidavit is made. It was inappropriate to be asked first to file the affidavit, and then to ask the court to inspect and decide. The privilege was available to be exercised in contempt proceedings within the same proceedings as the main action.
Mummery LJ said that: ‘It cannot be emphasised too strongly that in an urgent without notice hearing for a freezing order as well as for a search order or any other form of interim injunction, there is a high duty to make full, fair and accurate disclosure of material information to the court and to draw the court’s attention to significant factual, legal and procedural aspects of the case. It is the particular duty of the advocate to see that the correct legal procedures and forms are used, that a written skeleton argument and properly drafted order are prepared by him personally and lodged with the court before the oral hearing, and that at the hearing the court’s attention is drawn by him to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed.’
Robert Walker LJ discussed the apparent gathering of evidence by unlawful means and said that this has not in general led to its exclusion under the English law of evidence. It was far from obvious that concerns of this nature ‘should be added to the heavy responsibilities already undertaken by lawyers who are making a without notice application, except perhaps in circumstances where the evidence in question is of central importance to the application’. Even when the evidence is of central importance, for example evidence relating to the sale of contraband goods in a case of piracy of intellectual property rights, trap orders and other conduct involving impersonation or deception have been commonplace in the Chancery Division for a century or more, and do not seem to have attracted censure.

Judges:

Mummery LJ, Robert Walker LJ

Citations:

Times 15-Feb-2000, Gazette 27-Jan-2000, Times 03-Dec-1999, [2000] EWCA Civ 9, [2000] 1 WLR 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

On Appeal fromMemory Corporation Plc and Another v Sidhu ChD 21-May-1999
Where counsel proposing an asset freezing order fails to mention a case relevant to the issue, the order need not thereby be discharged. This is as against a failure to disclose a material fact, which would lead to a discharge of the order. . .
ApprovedDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

See AlsoMemory Corporation Plc, Datrontech Hong Kong Limited v Sukhbir Singh Sidhu, Sunsar Limited ChD 3-Nov-1999
. .
CitedJohn Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Human Rights, Contempt of Court

Updated: 19 May 2022; Ref: scu.83628

Hamilton v Al-Fayed and Others (No 3): QBD 13 Jul 2001

Where a person funded another’s court action as an act of charity, it should be exceptional to order that third party to contribute to the costs of the successful opponent. Nevertheless there could be no absolute rule against such orders. There is a clear distinction between those who act in this way as pure funders, and those who funded litigation from some contractual obligation. Another relevant consideration was whether the funder had information to suggest that the claimant had a reasonable prospect of success, or whether he acted as some quixotic philanthropist.

Judges:

The Hon Mr Justice Morland

Citations:

Times 25-Jul-2001, [2001] EWHC QB 389

Links:

Bailii

Statutes:

Courts and Legal Services Act 1990 4(1)

Costs, Defamation, Litigation Practice

Updated: 19 May 2022; Ref: scu.81197

Haiselden v P and O Properties Ltd: CA 28 May 1998

Where one party was a litigant in person and the other was legally represented, the legal advisers had a duty to inform the court and the other party where a patent mistake had been made. The small claim had been referred to full hearing by mistake and not to arbitration. The claim for andpound;1000 by the LIP was mistakenly tried rather than arbitrated as a small claim, the award of costs against plaintiff should be set aside. It was wrong of a legally assisted party to take advantage.

Judges:

Thorpe, Mantell LJJ

Citations:

Times 16-Jul-1998, Gazette 28-May-1998, [1998] EWCH Civ 773

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury

Updated: 19 May 2022; Ref: scu.81137

Don King Productions Inc v Warren King and Another (No 2): ChD 18 Jun 1998

An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of receipts.

Citations:

Times 18-Jun-1998

Jurisdiction:

England and Wales

Citing:

See AlsoDon King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
See AlsoDon King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .

Cited by:

See AlsoDon King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
See AlsoDon King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.80094

Dubai Bank Ltd and Another v Galadari and Others: ChD 19 Feb 1992

Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies.

Citations:

Gazette 19-Feb-1992

Jurisdiction:

England and Wales

Citing:

See AlsoDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
See AlsoDubai Bank Ltd v Galadari and Others (No 5) 25-Jun-1990
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.80150

Cox v Bankside Members Agency Ltd and Others: QBD 27 Jan 1995

Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents against each of which claims were being pursued, by different Lloyd’s Names. The essential issue was whether each claim ascertained as against an agent exhausted the agent’s insurance cover pro tanto, or whether all claims falling individually within a policy’s scope ranked or could be treated as ranking pari passu against the policy in whatever order they were ascertained against the insured agent or agents.
Held: Lloyds claims are to have priority of payment according to time of orders. The statutory transfer under the Act occurred notwithstanding that the insured’s liability to the third party had not yet been extinguished. The statutory transfer to the third party of the insured’s right against his insurer takes place at the moment of his bankruptcy.
Phillips J said: ‘In a situation of solvency, the ranking of claims against the EandO underwriter depends upon the order in which the third party Names establish liability against the assured by judgment, arbitration award or settlement, thereby giving rise to a vested right on the part of the assured to indemnity in accordance with the terms of the cover. The same is true in a situation of insolvency. If the insolvency occurs after third party Names have established quantified liability, the right or rights to indemnity that were thereby established in the assured agent will be transferred to the Names upon the assured becoming formally insolvent. If quantified liability has not been established at the date of insolvency, a third party Name asserting a claim will have transferred under the Act merely an inchoate or contingent right. If before that Name establishes a quantified claim, other quantified claims are established which exhaust the cover, his contingent right will be rendered nugatory.’ Phillips J summarised the relationship between the insurers and the solicitors acting: ‘Where underwriters instruct a solicitor to conduct the defence, they thereby create the relationship of solicitor and client between the solicitor and the assured . . The normal consequence of this is that the assured becomes liable to pay the solicitor’s costs, even if the underwriters were also liable for those costs . . Those costs are properly deemed to be incurred by the assured, even if they are funded by underwriters. . .’

Judges:

Phillips J

Citations:

Times 27-Jan-1995, [1995] 2 Lloyd’s Rep 437

Cited by:

Appeal fromCox v Bankside Members Agency Ltd and Others CA 16-May-1995
Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s . .
CitedCentre Reinsurance International Co and Another v Curzon Insurance Ltd ChD 12-Feb-2004
It was a necessary part of the system of statutory transfers of insurance obligations under the Act, that the rights should be transferred before exhaustion of any policy excess, and notwithstanding the insolvency. The rights (inchoate at this . .
CitedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedLaw Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency, Insurance

Updated: 19 May 2022; Ref: scu.79586

Cosgrove and Another v Pattison and Another: ChD 13 Feb 2001

The court set down a non-exhaustive list of factors to be considered where one party wanted to bring in its own expert after the court had ordered a single joint expert. These were: the number of dispute were the expert’s evidence was expected to be relevant, the reasons asserted for needing the additional expert, the amount at stake, the likely effect on the trial, including any delay, any other special features, and the overall justice to the parties.

Citations:

Times 13-Feb-2001

Litigation Practice

Updated: 19 May 2022; Ref: scu.79519

Commissioners of Customs and Excise v Anchor Foods Ltd (No 3): ChD 8 Jul 1999

The Civil Procedure Rules have not changed the common law rules which say that an interlocutory order for costs could not be varied by another judge sitting at first instance, except only in exceptional circumstances where it appeared for example that fraud might be involved. To do so would be for the court to act as an appellate capacity on a matter it had decided itself: ‘when the court makes an order, only in the most exceptional circumstances such as those involving fraud or the slip rule, could the court revisit the order even where it is for costs. The court cannot act as an appellate court in respect of its own orders. It is not even as if the circumstances in which I am asked to revisit the order were not contemplated at the time when the order for costs was made.’

Judges:

Neuberger J

Citations:

Gazette 11-Aug-1999, Times 28-Sep-1999, [1999] EWHC 834 (Ch)

Links:

Bailii

Citing:

See alsoCommissioners 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 . .
See alsoCommissioners of Customs and Excise v Anchor Foods Limited Admn 26-Jun-1998
The court heard an appeal by the Commissioners from the VAT Duties Tribunal that ‘Spreadable butter’ and ‘Ammix butter’ from New Zealand made and imported by the respondent are ‘manufactured directly from milk or cream’, and are not ‘recombined . .

Cited by:

See alsoCustoms and Excise v Anchor Foods Ltd (No.4) ChD 18-Oct-1999
. .
See AlsoCommissioners of Customs and Excise v Broomco (1984) Ltd (Formerly Anchor Foods Ltd) CA 17-Aug-2000
When an appeal is lodged in a VAT dispute, the discretion as to whether to require the appellant to lodge security for costs in the appeal, was a decision exclusively to be decided by the tribunal itself. A decision as to such security could not be . .
CitedCS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 19 May 2022; Ref: scu.79364

Commissioners 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 defendant’s assets so as to prevent a transfer of those assets, even though a reputable firm of accountants had valued the assets at the price which was to be paid, and that therefore there was no transfer at an udervalue. It should not be used to interfere in normal business acts. The court made an order granting the injunction, subject to an undertaking for costs, and allowing the defendant to bring evidence as to the proper values of the assets to be transferred.

Judges:

Neuberger J

Citations:

Times 01-Apr-1999, Gazette 24-Mar-1999, [1999] EWHC 833 (Ch), [2000] CP Rep 19, [1999] 3 All ER 268, [1999] 1 WLR 1139

Links:

Bailii

Citing:

See alsoCommissioners of Customs and Excise v Anchor Foods Limited Admn 26-Jun-1998
The court heard an appeal by the Commissioners from the VAT Duties Tribunal that ‘Spreadable butter’ and ‘Ammix butter’ from New Zealand made and imported by the respondent are ‘manufactured directly from milk or cream’, and are not ‘recombined . .

Cited by:

See alsoCommissioners of Customs and Excise v Anchor Foods Ltd (No 3) ChD 8-Jul-1999
The Civil Procedure Rules have not changed the common law rules which say that an interlocutory order for costs could not be varied by another judge sitting at first instance, except only in exceptional circumstances where it appeared for example . .
See alsoCustoms and Excise v Anchor Foods Ltd (No.4) ChD 18-Oct-1999
. .
See AlsoCommissioners of Customs and Excise v Broomco (1984) Ltd (Formerly Anchor Foods Ltd) CA 17-Aug-2000
When an appeal is lodged in a VAT dispute, the discretion as to whether to require the appellant to lodge security for costs in the appeal, was a decision exclusively to be decided by the tribunal itself. A decision as to such security could not be . .
CitedShepherd 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 . .
CitedThe Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.79365

Charlesworth v Relay Roads Ltd: ChD 31 Aug 1999

It remains possible to amend pleadings after judgment but before the order is drawn up, provided the party involved complies with the appropriate procedures. This may apply even though it would require the presentation of further evidence and argument to the court.

Judges:

Nueberger J

Citations:

Times 31-Aug-1999, [2000] 1 WLR 230

Citing:

See AlsoCharlesworth v Relay Roads Limited, Haley and Others PatC 1-Feb-1999
. .

Cited by:

CitedSecretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.78990

Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd: ChD 15 Jul 1992

Without Prejudice negotiations continue on that basis till clearly altered.

Judges:

Jules Sher QC

Citations:

Gazette 15-Jul-1992, [1992] 1 WLR 820

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.79000

Caribbean Gold Ltd v Alga Shipping Ltd (The Nova Scotia): QBD 2 Jun 1993

The time for service of a writ was extended after an excusable error by solicitors. The writ had been issued but the guidance given had been confusing.

Citations:

Gazette 02-Jun-1993

Citing:

Appealed toCaribbean General Insurance Co Ltd v Frizzell Insurance Brokers CA 4-Nov-1993
The judge was wrong to re-instate a case after there had been repeated breaches of unless orders by the plaintiff. Peremptory orders of the court must be obeyed unless excusable. . .

Cited by:

Appeal fromCaribbean General Insurance Co Ltd v Frizzell Insurance Brokers CA 4-Nov-1993
The judge was wrong to re-instate a case after there had been repeated breaches of unless orders by the plaintiff. Peremptory orders of the court must be obeyed unless excusable. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 May 2022; Ref: scu.78902

Busby v Cooper; Busby v Abbey National plc; Busby v Lumby: CA 2 Apr 1996

The claimant sought damages after having bought a house after receiving an allegedly negligent report on the concrete. She had asked to be allowed to add a third party (the local authority who had passed the building) as a defendant, but the request was outside the primary limitation period and was refused and again on appeal. She now sought to appeal.
Held: Her appeal was allowed. It was within the court’s jurisdiction to try issues relationg to the primary facts which would decide how the limitation rules would be applied. Section 14(10(b) operated to extend the time limit provided in 14(4)(a), and therefore it was not necessary to issue a new set of proceedings. The joining of a third party after the initial limitation period had expired, remained possible. The claim was justiciable.

Citations:

Times 15-Apr-1996

Statutes:

Limitation Act 1980 14A(4)(a) 14A(4)(b)

Jurisdiction:

England and Wales

Citing:

FollowedDavies v Reed Stock and Co Ltd 1984
. .
DistinguishedWelsh 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 . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 19 May 2022; Ref: scu.78778

C Inc Plc v L and Another: QBD 4 May 2001

The plaintiff had obtained judgment against L, only then to find that she claimed that all only apparent assets were held by her on trust for or as agent for her husband who was overseas. The plaintiff therefore now set out to add him, and to claim an asset freezing injunction against him.
Held: The court had power to order the assets of that third party to be frozen, even though they were not a party to the action, and no judgment existed against them. The court also has power to order him to be joined as a party, rather than for proceedings to be issued against him. Even though judgment had been obtained, the parties remained in dispute as to the means of payment, and that dispute remained part of the original proceedings. The word ‘proceedings’ in rule 19(2) should be interpreted widely and extend to circumstances where judgment had been obtained but not yet satisfied. The rule did not require that the disputed issue should be as between the existing parties. The court had the power to join the third party. The purpose of an asset freezing order ‘remains the protection of assets so as to provide a fund to meet a judgment obtained by the claimant in the English Courts’.
The court considered the effect of the decision in Cardile: ‘It seems to me that the High Court of Australia has stated that, in Australia, the assets of a third party can be frozen in aid of enforcing a pending or actual judgment, even where those assets are not beneficially owned by the actual or potential judgment debtor. The necessary precondition for power to make a freezing order over the third party’s assets is that the actual or potential judgment creditor should have some legal right to get at the third party’s funds. However, on my reading of the judgments, particularly pars. 57 and 121, the High Court of Australia is stating that there must be some casual link between the fact that the claimant has obtained a judgment against the principal defendant and thus has a legal right, as a consequence of the liability giving rise to the judgment, to go against the assets of the third party. I will delay deciding whether English law permits the exercise of the freezing order jurisdiction where there is such a casual link until I have considered the remaining two factors I have identified. ‘
and ‘If there is a claim for substantive relief by A against B (whether or not in the English Court), or A has obtained a judgment against B (in the English Court), then the English Court can grant a freezing order against the assets of C. But, generally, it must be arguable that those assets, even if in C’s name, are, in fact, beneficially owned by B.
The crucial question is whether the Court can go one stage further. Does it have the power to grant a freezing order against the assets of C when: (i) A has a substantive right against B (e.g. in the form of a judgment); (ii) the assets of C are not, even arguably, beneficially owned by B. The answer, to my mind, depends on how one interprets the phrases ‘ancillary’ and ‘incidental to and dependent upon’ used by Lords Browne-Wilkinson and Mustill in the Channel Tunnel case. In the Cardile case the High Court of Australia has, effectively, given those phrases a broad interpretation. But, critically, the High Court of Australia held that the right of A to a freezing order against C is dependent upon A having a right against B and that right itself giving rise to a right that B can exercise against C and its assets. Therefore the freezing order sought by A against C is ‘incidental to’ A’s substantive right against B and it is also ‘dependent upon’ that right.’

Judges:

Aikens J

Citations:

Times 04-May-2001, [2001] 2 Lloyds Law Reports 459, [2001] 2 All ER (Comm) 446

Statutes:

Civil Procedure Rules 19.4(2)(a), 6.30(2), 6.20(3)

Citing:

CitedCardile v LED Builders PTY Limited 1999
(High Court of Australia) The respondent (‘LED’) twice sought relief from Eagle Homes PTY Limited (‘Eagle’) for copyright infringement. Anticipating the proceedings the only shareholders and controllers of Eagle, the claimants arranged the . .

Cited by:

CitedSiskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
CitedHM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
CitedTrade Credit Finance No Ltd and Another v Bilgin and others ComC 3-Nov-2004
. .
CitedMesser Griesheim Gmbh v Goyal Mg Gases Pvt Ltd ComC 7-Feb-2006
The claimant sought to have set aside its own judgment obtained by default so as to apply for a second judgment. The first would not be enforceable abroad against the defendant, because a default judgment was not enforceable in India. The second . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 19 May 2022; Ref: scu.78800

Brown and Another v Bennett and Others (2): ChD 13 Jun 2000

The decision whether to order sequential or simultaneous disclosure of skeleton arguments was for each case. In construction cases simultaneous disclosure was usually appropriate, and this was also normal in Chancery. Nevertheless in complicated cases it might be sensible and was within the judge’s discretion to order sequential disclosure, with the claimant going first. The rules are silent because of this discretion.

Citations:

Times 13-Jun-2000

Litigation Practice

Updated: 18 May 2022; Ref: scu.78688

Brown and Another v Bennett and Others (No 2): ChD 2 Nov 2000

An expert witness should not be compelled to attend court where the party who instructed him had been unable to satisfy him that he was able to pay the expert’s fees. To hold otherwise would be to endanger the system of expert witnesses by allowing potential manipulation, by issuing a sub poena instead of paying the fee. In such circumstances the practice should remain that a witness summons should be issued only in exceptional cases.

Citations:

Times 02-Nov-2000

Litigation Practice

Updated: 18 May 2022; Ref: scu.78689

Bristol-Myers Squibb Company v Baker Norton Pharmaceuticals Inc and Another: CA 26 Apr 2001

The slip rule could not be used by the court to add second thoughts to a judgment, but could be used by the court to amend the judgment to give effect to the court’s original intention. In this case the effect of an appeal was to restart the running of interest from the date of the appeal judgment even though this had not been an issue, nor had it been intended, and the judgment could be amended to allow the courts intention to have effect. Whilst the authorities ‘establish that the slip rule cannot enable a court to have second or additional thoughts. Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the court.’

Judges:

Aldous LJ

Citations:

Times 26-Apr-2001, [2001] EWCA Civ 414

Links:

Bailii

Statutes:

Civil Procedure Rules Part 40.12 (1)

Jurisdiction:

England and Wales

Cited by:

See alsoBristol-Myers Squibb Company v Baker Norton Pharmaceuticals Inc, Napro Biotherapeutics Inc CA 23-May-2000
. .
CitedHerbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 18 May 2022; Ref: scu.78601

Brinks Ltd and Another v AbuSaleh and Others: ChD 6 Mar 1995

A delay in issuing Order 14 proceedings is not in itself relevant.

Citations:

Ind Summary 06-Mar-1995

Cited by:

See AlsoBrinks Ltd v AbuSaleh and Others (No 3) ChD 23-Oct-1995
A person must know of the existence of an obligation of trust to be liable as an accessory to an act in breach of that trust. A person cannot be liable for dishonest assistance in a breach of trust unless he knows of the existence of the trust or at . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.78582

Birmingham Post and Mail Ltd v Birmingham City Council: QBD 12 Nov 1993

The name of a person with a notifiable disease could be withheld pending an appeal, but any anonymity given by court to party must end when it would not be needed for the purposes of justice. The power to make an order under s.11 must be exercised carefully and cannot be used simply to protect privacy or avoid embarrassment An open ended order was inappropriate.

Citations:

Times 25-Nov-1993, Independent 25-Nov-1993

Statutes:

Public Health (Control of Diseases) Act 1984 37, Contempt of Court Act 1981 11

Cited by:

CitedAllen v The Grimsby Telegraph and Another QBD 2-Mar-2011
The claimant sought to prevent publication of his name in the context of the making of a Sexual Offences Prevention Order (SOPO). He had been convicted of offences against sex workers. An order had been made preventing disclosure of his address, but . .
Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 18 May 2022; Ref: scu.78418

Berliner Bank v Karageorgis and Another: ComC 20 Oct 1995

A plaintiff can insist on automatic judgment despite the availability of proceedings abroad.
cw Procedure – RSC Order 13 – RSC Order 19 r.2 – failure to acknowledge service – failure to serve a defence – trial on the merits – inherent jurisdiction of court.

Citations:

Times 27-Nov-1995, [1996] 1 Lloyd’s Rep 426

Litigation Practice

Updated: 18 May 2022; Ref: scu.78360

Biosource Technologies Inc v Axia Genetics Plc (In Administration): ChD 25 Nov 1999

The rule which prevents a company in administration being prosecuted without the leave of the court, was not intended only to restrict creditors. Here another company wanted to bring patent infringement proceedings, but were first to be required to obtain the court’s consent.

Citations:

Times 25-Nov-1999, Gazette 25-Nov-1999

Statutes:

Insolvency Act 1986 11(3)(d)

Insolvency, Litigation Practice, Intellectual Property

Updated: 18 May 2022; Ref: scu.78409

Barry v Ablerex Construction (Midlands) Ltd: CA 30 Mar 2001

It was appropriate to reduce the interest discount rate used to calculate damages awards in personal injury cases for future losses, from 3 per cent to 2 per cent. This reflected the general reduction in such interest rates since the Act came into effect. The House of Lords had set down guidelines for the discount rate to be applied on the award of damages for future losses. The decision had been expressed to apply only until the Act was put into effect. The parties sought to argue that they were not bound since the limitation was not essential to the decision, and the Lord Chancellor was thought to be about to announce a rate under the Act. The Court of Appeal stated that whilst guidelines were not immutable principles of law, they were clearly to be applied, and the time scale, set down in the judgement, was just as much part of the guidelines as the rate.

Judges:

Hnry, Judge, Hale LJJ

Citations:

Times 03-Apr-2001, Gazette 01-Jun-2001, [2001] EWCA Civ 433

Links:

Bailii

Statutes:

Damages Act 1996

Jurisdiction:

England and Wales

Citing:

Appeal fromBarry v Ablerex Construction (Midlands) Ltd QBD 22-Mar-2000
After a delay of delay 5 years, the judge deducted two years interest from the award to reflect the plaintiff’s delay. . .
CitedWells v Wells; Thomas v Brighton Health Authority; etc HL 16-Jul-1998
In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded. . .

Cited by:

CitedEagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
CitedTortolano v Ogilvie Construction Ltd SCS 21-Feb-2013
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice, Damages

Updated: 18 May 2022; Ref: scu.78259

Barings Plc and Another v Coopers and Lybrand (A Firm) and Others: ChD 13 Aug 1996

The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided

Citations:

Times 13-Aug-1996, Gazette 23-Oct-1996, [1996] EWCA Civ 1025

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromBarings Plc and Another v Coopers and Lybrand (A Firm) and Others CA 6-Dec-1996
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue. . .
CitedJohnson 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 18 May 2022; Ref: scu.78229

Bank of England v Gibson: QBD 9 May 1994

A court need not be satisfied as to the exact date of a theft, in order to make a finding that a theft had happened. The level of proof required in civil fraud cases will vary with the seriousness of allegation.

Citations:

Times 09-May-1994, Ind Summary 30-May-1994

Criminal Practice, Litigation Practice

Updated: 18 May 2022; Ref: scu.78155

Bankers Trust Company v P T Jakarta International Hotels and Development: ComC 12 Mar 1999

Where an arbitration agreement referred to an arbitration under the rules of a major international scheme, by virtue of a standard form master agreement, this was sufficient and good reason to grant an injunction to enforce the reference.
ComC Injunction restraining proceedings in a foreign court in breach of an arbitration agreement.

Judges:

Cresswell J

Citations:

Times 10-May-1999, [1999] 1 All ER (Comm) 785, [1999] 1 Lloyd’s Rep 910

Arbitration, Litigation Practice

Updated: 18 May 2022; Ref: scu.78163

David John Baron v Brian Lovell: CA 27 Jul 1999

A party to litigation must ensure that an agent attending had sufficient knowledge and authority to deal with issues raised at a pre-trial review, and where he failed in this he could be penalised in indemnity costs or interest at higher rates than usual on damages. An agent had no knowledge of why an expert’s report had not been served, and the report remained excluded.
Brooke LJ said: ‘If a defendant’s lawyers choose not to send a representative with appropriate authority to attend a pre-trial review and choose not to ensure that the client (who in this case should be equated with the defendant’s insurer) attends the review, the judge, who is likely to be the trial judge, is likely to note their absence. If he considers that that party has acted unreasonably in this way in connection with the litigation in breach of a direction of the court, there may come a time when he decides that it is appropriate to make an order for indemnity costs against that party, or to exercise his power to award interest on damages at a much higher rate than what is usual, if those powers are available to him. The whole trust of the CPR regime is to require the parties to behave reasonably towards each other in the conduct of the litigation. The old antagonistic point scoring, which used to drag personal injuries cases out and run up costs, should now be at an end.’

Judges:

Brooke LJ

Citations:

Times 14-Sep-1999, [1999] EWCA Civ 1977

Links:

Bailii

Statutes:

Civil Procedure Rules 1998 R 29

Jurisdiction:

England and Wales

Cited by:

CitedReid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.78238

Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) v Habib Bank Ltd: ChD 20 Jul 1998

Where judgment was entered in default but there was some significant defect in that judgment it would not in future be set aside automatically, but the court should look to the merits, correct the error, consider the merits and then decide what to do.

Citations:

Times 20-Jul-1998

Statutes:

Rules of the Supreme Court Order 13 1

Litigation Practice

Updated: 18 May 2022; Ref: scu.78136

Bank of Credit and Commerce International Sa (In Liquidation) v Ali and Another: ChD 17 Feb 1999

A compromise of a claim involved a settlement with the value given, and a release did not import requirement for any consideration. A compromised claim could not be set aside for lack of knowledge, and no duty of disclosure of any wrongdoing existed.

Judges:

Lightman J

Citations:

Times 25-Jan-1999, Gazette 17-Feb-1999, [1999] ICR 1068

Cited by:

See alsoBank of Credit and Commerce International Sa (In Compulsory Liquidation) v Munawar Ali, Sultana Runi Khan And Others (No 3) ChD 25-Jun-1999
In order for an employee to claim that his employer was conducting his business in an unlawful manner so as to destroy the relationship of trust and confidence between them, the activity had to be such that the employee could not reasonably be . .
At First InstanceBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.78147

Charlesworth v Relay Roads Ltd and Others: PatC 20 Jul 1999

Application by the defendants for permission to amend their Defence and Counterclaim and Particulars of Objections and to call further evidence to support those amendments in circumstances where, not only has the hearing of the action been completed, but judgment has been handed down, although, crucially, the order has not been drawn up.

Judges:

Neuberger J

Citations:

[1999] EWHC 829 (Pat), [2000] RPC 300, [2000] CP Rep 37, [2000] CPLR 109, [2000] 1 WLR 230, [1999] 4 All ER 397

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice

Updated: 18 May 2022; Ref: scu.567878

Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd: 1972

The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to sell the land or any part of it. Within that period the first defendants contracted to sell, and then conveyed, the land to the second defendants without any release from the option. In the course of the proceedings for damages for, among other things, breach of contract and conspiracy, the plaintiffs issued a summons for disclosure from the second defendants of instructions to counsel by the first defendants and the opinion of counsel, which had been sent by the first defendants to the second defendants.
Held: The second defendants’ claim for privilege should be upheld and the plaintiffs’ summons dismissed. It was clearly established that privilege of a predecessor in title enures for the benefit of his successor. The second defendants had received the documents at issue as successors in title.

Judges:

Goff J

Citations:

[1972] Ch 533, [1971] 3 All ER 1192, [1972] 2 WLR 91

Jurisdiction:

England and Wales

Citing:

CitedMinet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .

Cited by:

CitedIn re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
CitedShlosberg v Avonwick Holdings and Others ChD 7-Mar-2016
Application for order disallowing a firm from acting for the defendants. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 18 May 2022; Ref: scu.621168

Sun Valley Foods Limited v Vincent: 2000

The court considered the grant of ‘springboard relief’. Jonathan Parker J said: ‘For reasons which I have already explained, there is no room for doubt that the defendants have made unlawful use of material in which Sun Valley/Fields has a proprietary interest. But, as Nourse L.J. explained in Bullivant, that in itself is not enough to found a claim for ‘springboard’ relief. Sun Valley also has to establish (a) that the defendants thereby gained unfair competitive advantage over Sun Valley ‘to use the words of Roxburgh J.’ (an ‘unfair start’) and (b) as of today that advantage still exists and will continue to have effect unless the relief sought is granted.
It is, therefore, necessary to consider on the evidence as it stands (and, of necessity, without the benefit of cross-examination) the extent to which the unlawful copying of Fields’ material assisted the defendants in starting up Fusion’s business and in thereby shortening the start-up period.
In undertaking this task, I must bear in mind that there was nothing unlawful in the individual defendants making use of their own expertise and experience in setting up in competition with Sun Valley/Fields immediately following their resignations. In those respects, a ‘seamless transaction’ from Fields to Fusion was a legitimate aim which cannot found an application for ‘springboard’ relief.’

Judges:

Jonathan Parker J

Citations:

[2000] FSR 825

Jurisdiction:

England and Wales

Cited by:

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.

Employment, Litigation Practice

Updated: 18 May 2022; Ref: scu.619038

CRE 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 Court, but the claimant applied to have the order set aside.
Held: At the time the M and CL (Media and Communications List) was only just established. The court recorded its views that: ‘It seems to me to be strongly in the interests of justice that this matter be heard by a specialist judge, and that with the advent of the media and communications list (which was only announced after Master Price’s order was made), such a specialist list has now become available, and it seems to me to be the most appropriate forum.
Furthermore, the Chancery Division does not seem to be the appropriate tribunal given the matters raised by the claim and the defendants forthcoming application for summary judgement.’

Judges:

Deputy Master Arkush

Citations:

Unreported

Jurisdiction:

England and Wales

Cited by:

CitedMezvinsky 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. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.616907

Regina v Lord Mayor of London; Ex parte Boaler: QBD 1893

Boaler had brought unsuccessful proceedings in the Lord Mayor’s Court against a company, and was ordered to pay its costs. When he failed to pay them, an order of commitment was made against him. He applied for certiorari, alleging, inter alia, that the proceedings had been brought against the company without leave, when it was in liquidation, and that therefore all the proceedings, including the order of commitment, were invalid.
Held: The argument of want of jurisdiction was expressly negatived The absence of a required consent to an action did not where the defect could be cured.
Wright J said: ‘Another point which the applicant made was this. The company in question was in liquidation, and he says that the proceedings could not be continued. That affords no ground for granting a certiorari. It was a bad plea at common law that a compulsory winding up was in progress. The provision applicable to such a case is s87 of the Companies Act 1862 (25 and 26 Vict. c. 89), by which, ‘When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose.’ That section has always in practice been worked out by applying to stay the proceedings, and further it does not apply to the case of a voluntary liquidation, the provisions applicable to which are contained in s138, and under that section the stay is discretionary. A certiorari can only issue where there is a want of jurisdiction.’

Judges:

Wright J

Citations:

[1893] 2 QB 146

Jurisdiction:

England and Wales

Cited by:

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.

Litigation Practice, Company

Updated: 18 May 2022; Ref: scu.567274

Morris v Banque Arab et Internationale d’Investissement: ChD 2000

The parties had exchanged lists of documents but one side objected to inspection of a number of them on the ground that it would put them in breach of French law.
Held: There was discretion to be exercised. Neuberger J ordered inspection bearing in mind the relevance of the documents and very small risk of prosecution.

Judges:

Neuberger J

Citations:

[2000] CP Rep 65

Cited by:

See AlsoMorris v Banque Arab et Internationale D’Investissment SA (No 2) ChD 26-Oct-2000
For an order to be made under the section, and a contribution to the shortfall on insolvency made, it was necessary to show that the person against whom the order was sought had in some way participated in the fraudulent activity. It was not . .
CitedProperty Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 19-Feb-2015
The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.543479

Vint v Hudspith: 1885

In the Chancery division, and where judgment has been entered in default, the proper challenge is by request to the judge to set aside his judgment. Though an appeal to the Court of Appeal is possible, such appeals will be discouraged.

Citations:

(1885) 29 ChD 322

Cited by:

CitedS v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.549470

Pinnock Bros v Lewis and Peat Ltd: 1923

Roche J said as to Ayscough: ‘In that case the arbitrator decided – whether rightly or wrongly is immaterial for present purposes – that by reason of a clause as to time contained in the contract, the plaintiffs had no claim, and therefore he dismissed it. In the present case, the arbitrator merely decided that he had no jurisdictio, and that being in the award does not and cannot determine the substance of the plaintiff’s claim.’
Later he said: ‘The mere presence of an arbitration clause is no defence to an action on the contract.An award following on the arbitration clause mnay be an answer to the claim, and it will be an answer where it deal with the claim

Judges:

Roche J

Citations:

[1923] 1 KB 690

Litigation Practice

Updated: 18 May 2022; Ref: scu.509129

Ex parte Mwenya: CA 1959

A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the subject’. The reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ‘the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.’
Lord Parker said: ‘Reliance was further placed by the applicant on Barnardo v Ford and Rex v Secretary of State for Horne Affairs, Ex p O’Brien. Both those cases are authority for the proposition that the writ will issue not only to the actual gaoler but to a person who has power or control over the body. Further, in O’Brien’s case the writ was issued to the Secretary of State for Home Affairs, who had in fact handed the physical custody of the body over to the Government of the Irish Free State. It is clear, however, from the facts of that case, that the Secretary of State had not only been responsible for the original detention but that there were strong grounds for thinking that in handing over the body to the Government of the Irish Free State he had not lost all control over it. In those circumstances the court decided to issue the writ in order that the full facts could be investigated and argument heard on the return.
The position here is quite different. The restriction orders under which the applicant is detained were not made by the Secretary of State. His approval or consent was not required and there is no evidence that he took any part in the detention. No doubt the writ will issue not only to a person who has the actual custody but also to a person who has the constructive custody in the sense of having power and control over the body. Here, however, we can find no custody by the Secretary of State in any form.’ (obiter) said: ‘Finally, we should mention another point that was raised, namely, that even if the Secretary of State could be regarded as the custodian of the body the writ would not issue to a custodian in this country where the original and present detention was, as in the present case, in a foreign territory . .’

Judges:

Lord Evershed MR, Lord Parker

Citations:

[1960] 1 QB 241, [1959] 3 All ER 525

Citing:

CitedBarnardo v Ford HL 1892
A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. . .
CitedSecretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .

Cited by:

CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.470682

Case Viii 27 H 6, 4 28 H 6, 1 4 H 6, 22 By All The Judges of England: 1220

In trespass the parties are at issue ; at the trial some of the jurors appear, and some make default ; a distringas with decem tales is awarded : upon this distringas a full jury appears; at this day a protection cast for the defendant shall be allowed ; for he is then demandable, and the end of a protection is to excuse his defaut. A protection does not lie, after a juror is worn.

Citations:

[1220] EngR 676, (1220-1623) Jenk 108, (1220) 145 ER 76 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461588

Case LIII: 1220

If the teste of the original writ of covenant is after the conusance in the case of a fine ; and so for the common recovery as to the teste of the writ of entry in the post ; they are amenable : for these are manifest mistakes of the clerk, although it was taken otherwise in the 39 Eliz. yet it was resolved as above the 41 Eliz. Note the Book of Entries, 252. Fines are commonly acknowledged, arid after the caption, the writ of covenant entered with the antedate.

Citations:

[1220] EngR 665, (1220-1623) Jenk 258, (1220) 145 ER 184 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461577

Case LXXXIX 2 Keb 260, Pl 9 Jac Hob 5, Crowe’s Case: 1220

Visne, Consensus, Error.
A. brings delict against B. upon an obligation bearing date at Coventry. This suit was in the King’s Bench, removed thither out of Coventry; a procedendo was awarded to Coventry ; by agreement betweeri the parties, the procendendo was not delivered but the plaintiff prosecuted his suit in the King’s Bench, and laid the said action in London ; upon issue of non est factum pleaded, the plaintiff had a verdict, and judgment ; reversed in error, notwithstanding the said consent of plaintiff arid defendant, and although this action be transitory.

Citations:

[1220] EngR 278, (1220-1623) Jenk 310, (1220) 145 ER 226 (D)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461190

2 R 3, 81 1 Cr 452 35 H 7, 16 Statutes, Process, Eviction, Certificate, Retorne De Viscount: 1220

A statute staple or merchant is once certified in Chancery, there is no occasion for a new certificate if the conusee dies ; but there is occasion if the Chancellor he named by his Christian name, and dies ; or if the first certificate was insufficient. Upon a statute staple, a capias and extent of lands, goods, and chattels are contained in one writ ; but it is not so upon a statute-merchanit. If the land be extended upon this writ, and the body be not found ; a new capias shall not be directed to the sheriff of another county, without a testatum that latitat there. The executor of the conusee must have a new certificate ; for the certificate had in the life of the conusee will not serve. A scire facias does not lie for the executor; for the statute prescribes the process, and that must be used : as Westm 2, cap. 35, gives the writ of ravishment of ward; this writ was not the words vi and armis: for this would not follow the form prescribed by the statute. Lands extended are evicted, at common law a new extent would not lie ; so if the husband died seised in right of his wife : but at this day, by the statute 37 H. 8, where there is a total eviction, a new extent may be awarded. But at common law, and at this day, such eviction does not hinder a capias for the body of the conusor. Where, after a younger statute is extended, an extendi facias upon an elder statute comes to the sheriff; the sheriff has his choice whether to return this matter, or to extend the elder statute.
By all the judges of England.

Citations:

[1220] EngR 290, (1220-1623) Jenk 163, (1220) 145 ER 105 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461202

CASE XLVI 5 E 4, 93 Stamf 85 Ve Na Br 50: 1220

A. recovers against B. in a praecipe quod reddat, by default ; the writ of deceit in this case is judicial, and issues out of the Common Pleas, and the process is attachment and distress infinite, and is mentioned in the writ ; and in this case A. and the sheriff, and the summoners and veiors are made parties by this writ; that is, he who was sheriff and made the, return of the summons which by the writ of deceit is alledged to be false. If the present sheriff did this deceit, the writ of deceit aforesaid shall be directed to the coroners. The sheriff in this case for summoner return C. and D, de Dale, yeomen, summonitores ; the tenant shall have an averment aganst this return, that there are in Dale, yeomen, two C.’s and D.’s ; C. and D named in the sheriff’s return to be the summoners, are the elder; and other C. and D. the younger, by which the sheriff has returned the said false summons to be made : this issue, which of them was returned by the sheriff; and whether they be the sumnoners returned by the sheriff or not, shall not be tried by the country, but by the examination of the judges ; as infancy upon a writ of error to reverse a fine levied by him during his nonage ; this nonage shall be tried by inspection, and the examination of the judges, and not otherwise.

Citations:

[1220] EngR 560, (1220-1623) Jenk 122, (1220) 145 ER 86 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.461472

Case LXXI 29 Ass Pl 47 6 E 4, 9 7 H 4, 41 30 Ass Pl 20: 1220

Outlawry is a good plea in an audita querela, for the outlawry does not depend upon the audita querela ; and the judgment against which relief is prayed, is not to be reversed, but only the execution of it. In error, outlawry upon the judgment which is to be reversed by the writ of error, is not a plea,; for the said judgment being the foundation of the outlawry, the reversal of it reverses the outlawry: but a writ of error, to reverse any other judgment thn that upon which the outlawry depends, outlawry is a good plea. ‘Tis so of an attaint, where the attaint is to annul the verdict ; and by consequence, the judgment upon which the outlawry depends, doth not disable the plaintiff in the said attaint ; for the foundation is to be taken away, and therefore the outlawry in this case is no plea.
Judged by both benches.
If a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not disable the plaintiff in error; for otherwise, if the outlawry was erroneous, it shall never be reversed.
Exceptio rei cujus dissolutio petitur, nulla est.

Citations:

[1220] EngR 373, (1220-1623) Jenk 37, (1220) 145 ER 28 (A)

Links:

Commonlii

Torts – Other, Litigation Practice

Updated: 18 May 2022; Ref: scu.461285

1 H 7, 20 5 Co 88 A B, Garnon’s Case Execution: 1220

A. brings trespass vi and armis against B. B. is condemned in damages in the time of one King, who demises ; upon the coronation of the new King there was a pardon of this fine ; after four years the defendant was taken by a capias pro fine: for the King : upon a petition to the King in this case he shall be discharged; and shall not be in executiori for the plaintiff, although he should pray it ; for the capias pro fine issued erroneously after a pardon ; and he cannot be in execution at the suit, and upon the prayer of the party in this case, neither after the year is ended, nor within the year ; for the reason aforesaid.
By all the judges of England.

Citations:

[1220] EngR 23, (1220-1623) Jenk 169, (1220) 145 ER 110 (D)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460935

Case LXXXVII 10 Co 130, Osborne’s Case Damages, Fanx Latin, Anglice, Count Hardr 41 Cr Jac 665: 1220

A. brings an action on the case against B. and counts that B. took from him several goods, and mentions them and inter alia fulcrum lecti, Anglice a tester of a bed with curtains of say; upon not guilty pleaded, a verdict is found for the plainitiff, and entire damages given : arid well. For Anglice will serve : especially where there is no Latin word obvious to signify it : as in this case, there is no Latin word for a tester of a bed.
But where an obvious word occurs, because that by law, viz. by the statute of 36 E, 3, all pleas ought to be irtrolled in Latin, an Anglice will riot serve ; lest the divine science of the law should be prophaned by bararisms . Thus, in trespass pro captione and abductions unius Cornetti ; Anglice, an ox, this is faulty ; for bos is an obvious word for it.

Citations:

[1220] EngR 47, (1220-1623) Jenk 270, (1220) 145 ER 194 (A)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460959

CASE LIII 10 E 4, 15 Dyer, 212, 241 Yel 51, 52 Rescous, Return Le Viscount: 1220

Upon a capias directed to the sheriff against A. the sheriff returns a rescous by J S of Dale yeoman, and mentions the year and day, but not the place where the rescous was committed ; this return is void : for it cannot be traversed for want of a place out of which the jury shall come : but upon this return the rescuer, upon his appearance, shall be commiitted ; and afterwards received to his traverse, or exception to the indictment : for a rescous is a great and heinous offence in violation and contempt of justice; and this want of a legal form shall not excuse him from imprisonment in terrorem and exemplum.
By the judges of both benches.

Citations:

[1220] EngR 50, (1220-1623) Jenk 125, (1220) 145 ER 88 (B)

Links:

Commonlii

Litigation Practice

Updated: 18 May 2022; Ref: scu.460962

Bulwer’s Case: 1572

B. brought an action on the case in the county of N. for maliciously causing him to be outlawed in London upon process sued out of a Court at Westminster, and causing him to be imprisoned in N. upon a capias iutlagutum directed to the sheriff of that county, but issued at Westminster; and upon demurrer it was adjudged that the action was well brought in the county of N.
In all cases where the action is founded on two things done in several counties, and both are material or traversable, and the one without the other does not maintain the action, the plaintiff may bring his actiori in which county he will.

Citations:

[1572] EngR 58, (1572-1616) 7 Co Rep 1, (1572) 77 ER 411

Links:

Commonlii

Torts – Other, Litigation Practice

Updated: 18 May 2022; Ref: scu.432025