Tag: Litigation Practice

Lawrenson v Lawrenson and Equity Red Star: 12 Jul 2005

Judges:

Judge Stewart QC

Citations:

Unreported, 12 July 2005

Jurisdiction:

England and Wales

Cited by:

Cited – Charnock and Others v Rowan and Others CA 20-Jan-2012
14 passengers in a bus hit from behind at a slow speed had all claimed whiplash injury. The expert had said that the accepted speed required to produce such an injury was a change of 3mph, which would require an impact at 30mph, whereas the evidence . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 May 2022; Ref: scu.450439

Arias and Others v Commissioner for the Metropolitan Police and Another: CA 1 Aug 1984

A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence of a widespread fraud and that the documents were crucial to their investigations and that the investigation might be ‘hampered’ and disclosure might provide ‘an opportunity to fabricate evidence’. The police claim succeeded. The trustees appealed
Held: The appeal succeeded. May LJ giving the leading judgment said: ‘For my part I respectfully do not think that in that passage from his speech in IRC v. Rossminster . . which I have just read, Lord Diplock was intending to go as far as that. It seems to me quite apparent from his reference to ‘other evidence’ on the relevant application being ‘strong enough to justify the inference that no reasonable person could have thought so’ necessarily contemplates that to which Lord Morris referred in his speech in Conway v. Rimmer . . namely that in all these cases where there are conflicting public interests the ultimate decision as to which is to prevail must depend upon the exercise of discretion by the judge before whom the relevant application is made, that is to say by him conducting an appropriate balancing exercise of the one public interest against the other, and of the harm which would result from denying one public interest against the harm which would result from denying the other. That that is the duty of the court in these circumstances is, I think, quite apparent also from such cases as D v. NSPCC. . . In that context I quote paragraphs 19 and 21 of the learned judge’s judgment: ‘The second defendant –that is, the detective constable — has sworn that all the documents are crucial to his investigation and the reason why copies should not be provided he goes on to say, is because if they are disclosed at this stage there is a future real danger that his investigations may be hampered and an opportunity provided to fabricate evidence.
I am not satisfied that the evidence I have considered is strong enough to justify the inference that the Second Defendant has no reasonable grounds for his belief and accordingly this application for a mandatory injunction is refused.’
It will be immediately apparent that the learned judge’s reference to ‘evidence’ and ‘inference’ in paragraph 21 stems from the dictum of Lord Diplock in the Rossminster case which I have quoted . . ‘For my part I accept that in the factual context of the present case a claim to a public interest to retain documents so that criminal investigations may be properly prosecuted is at least arguable. I also accept, however, Mr. Purnell’s submission that in this particular case the claim to that public interest immunity goes very much further than it has in any other case. He submits, for instance, that it would not be difficult in almost any case –particularly any case involving documentary material –for the prosecuting authority to come along and depose genuinely on affidavit to their fear that if the documents were disclosed the alleged offenders might seek to fabricate defences. This shows, he submits, how wide is the claim for immunity in this appeal.
For the reasons which I have tried to give, I think at the end of the day, in these cases where there are two conflicting public interests involved and one cannot at once say that in the particular circumstances one or the other must clearly prevail, it is a question for the court to perform the sort of balancing exercise to which I have referred, setting the one public interest against the other, the benefit of which will accrue from the maintenance of the one against the benefit which will accrue from the maintenance of the other, and also the harm which will accrue from not allowing one or the other to succeed . . Whilst I bear in mind what Lord Morris said in his speech in Conway v. Rimmer . . that one must remember that it may sometimes be difficult for a person claiming this particular public interest privilege to condescend to substantial particulars for the very reason that, if he does, he may give the whole game away at that stage, I am satisfied that the evidence in the two affidavits to which I have referred, when properly and realistically analysed, is really only speculation. What the officer says, for instance, in the most recent affidavit is that, if the information were to be made available, ‘it would enable them, if so minded, to attempt to cover their tracks by the production of other documents based on the information contained in the documents which I hold.
As I have said, I take the view that in all these cases what the court has to do is to conduct the appropriate balancing exercise. I would not wish it to be thought that in every case something more than the mere statement of belief on reasonable grounds on the part of the relevant police officer or revenue officer is required. Each of these cases, in which this conflict of public interest arises has to be decided on its own facts having regard to all the circumstances of the case as they then appear to the court. Doing the balancing exercise in the present case, however, bearing in mind the view that I take of the speculative character of the evidence proffered on behalf of the respondents, I am driven to the conclusion that the fact that these documents are the appellants’ own documents, and that they are only asking for copies of them to enable the trust business to be carried on, even if they may wish to prepare their defence to any criminal prosecution which may hereafter be instituted, leads to the balance coming down clearly in favour of the appellants . . In my judgment, to make good that claim would require substantially more cogent evidence than is available in the affidavits sworn by the detective constable in the instant case.’

Judges:

Kerr, May LJJ

Citations:

(1984) SJ (128) 784

Jurisdiction:

England and Wales

Citing:

Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .

Cited by:

Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Police

Updated: 04 May 2022; Ref: scu.443852

Re Jogia (A Bankrupt): 1988

Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to serve out cannot resist an application challenging the jurisdiction by pleading a new cause of action. A claim for unjust enrichment, in the absence of a contractual relationship between the parties, and other than claims to land, are governed by the law of the place of enrichment.
Sir Nicolas Browne-Wilkinson V-C said (obiter): ‘As at present advised, I am of the view that quasi-contactual obligations of this kind arise from the receipt of the money. I find it difficult to see how such obligation can be said to be ‘made’ or ‘arise’ in any place other than that of receipt. As to the proper law, Dicey and Morris, the Conflict of Laws, 10th edn. (1980), p.921 expresses the view that, save in cases where the obligation to repay arises in connection with a contract or an immoveable, the proper law of the quasi-contact is the law of the country where the enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle.’

Judges:

Nicolas Browne-Wilkinson V-C

Citations:

[1988] 1 WLR 484, [1988] 2 All ER 328

Citing:

Applied – Parker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 May 2022; Ref: scu.441564

Gray and Ux v Bull: 17 Nov 1682

Bill to be relieved against a release as gained by fraud; it appeared here there had been anotehr release given; and though it was said that it was got in the same manner; yet not being taken notice of in the bill nor relief prayed against it, bill was dismissed.

Citations:

[1682] EngR 494, (1682) 1 Vern 86, (1682) 23 ER 329 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 02 May 2022; Ref: scu.401591

Smith and others v Cardiff Corporation (No.1): CA 1954

Four plaintiffs set out to represent 13,000 tenants, and sought to challenge a proposed rent increase. The scheme they sought to challenge provided for different rents taking into consideration the financial circumstances of individual tenants. Of the tenants the rents of only 8,000 would be increased.
Held: The plaintiffs did not meet the requirements for a representative action, because the class of corporation tenant did not have a common interest or grievance and the relief sought was not in its nature beneficial to all members of the class which the plaintiffs claimed to represent. Sir Raymond Evershed MR set out the test under Order 16 r 9, ‘It must be shown . . that all the members of the alleged class have a common interest, that all have a common grievance, and that the relief is in its nature beneficial to them all.’

Judges:

Sir Raymond Evershed MR

Citations:

[1954] 1 QB 210

Jurisdiction:

England and Wales

Cited by:

Cited – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 02 May 2022; Ref: scu.392983

Andrew v Raymond: 15 Nov 1728

In a suit for tithes an article of an allegation was offered to the Court, referring to an old terrier made 106 years before. It was objected that the terrier was not legally and duly made, that the article referring to that which could be no evidence could not be relevant.

Citations:

[1728] EngR 560, (1728) 2 Lee 571, (1728) 161 ER 444 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 02 May 2022; Ref: scu.388893

Duke of Dorset v Serjeant Girdler: 1720

A man who is in possession of a fishery, may bring a bill to examine his witnesses in perpetuam rei memoriam, and establish his right, though he has not recovered in affirmance of it at law ; secus, if he is not in possession. In a civil trial: ‘the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth.’

Citations:

[1720] 24 ER 238, (1720) Prec Ch 531, [1720] EngR 10

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 May 2022; Ref: scu.270014

Paragon v Thakerer: 1993

A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded.

Citations:

[1993] 1 All ER 400

Jurisdiction:

England and Wales

Cited by:

Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Lists of cited by and citing cases may be incomplete.

Trusts, Torts – Other, Litigation Practice

Updated: 01 May 2022; Ref: scu.268053

Rodger v The Comptoir d’Escompte de Paris: 1871

Judgment had been first given, but reversed on appeal. The money had been paid following judgment. The appeal court had ordered the return of the money and the question was whether there should also be interest on the money.
Held: Lord Cairns: ‘It is contended, on the part of the Respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if this is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld.’

Judges:

Lord Cairns

Citations:

(1871) LR 3 PC 465

Jurisdiction:

England and Wales

Cited by:

Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 01 May 2022; Ref: scu.242618

Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd: 1990

The negligence of the plaintiffs’ insurance brokers led to the insurance policies being voidable for non-disclosure.
Held: The plaintiffs suffered immediate damage on entering into the policies because they did not get the protection they should have had, even though the eventual uninsured losses and the avoidance of the policies were wholly contingent at the time the insurance agreements were made and might never have eventuated.
‘But counsel for the plaintiffs emphasises that this is an application to strike out the plaintiffs’ cause of action. It is well established that one should only do so on the ground that the cause of action is time-barred if it is a clear case. He submits that the question when the plaintiffs possessed sufficient relevant knowledge is a question of fact which is not appropriate to be decided at this stage. I agree. In my view this is a matter which must be investigated at trial. Whether it is done by way of a preliminary issue is a matter which may be decided hereafter.’

Judges:

Rokison QC HHJ

Citations:

[1990] 1 All ER 808

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 01 May 2022; Ref: scu.241657

Dellenty v Pellow: 1951

The payment off of arrears of rent will not necessarily prevent an order for possession being made where there is a history of arrears and poor payment.

Citations:

[1951] 2 KB 858, [1951] 2 All ER 716

Jurisdiction:

England and Wales

Cited by:

Cited – Paddington Churches Housing Association Ltd v Sharif CA 27-Jan-1997
The landlord had obtained a possession order against its secure tenant. The tenant had left to go to Egypt, and had been in arrears of rent. The tenancy obliged the tenant to occupy the prperty as his main residence. The landlord re-let the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Housing

Updated: 01 May 2022; Ref: scu.239720

B v B (Matrimonial Proceedings: Discovery): CA 1978

The wife applied for ancillary relief, and sought disclosure from a third party.
Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. ‘Custody’ in RSC Ord 24 was held ‘to refer to documents which are in the physical holding of a party but not in his personal capacity, rather qua company director/agent or similarly’.
Dunn LJ said: ‘It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband’s financial position . . She may . . know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division.
Applications for such discovery cannot be described as ‘fishing’ for information, as they might be in other divisions. The wife is entitled to go ‘fishing’ in the Family Division within the limits of the law and practice.’

Judges:

Dunn LJ

Citations:

[1978] Fam 181, [1978] 3 WLR 624

Jurisdiction:

England and Wales

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .
Cited – Marketmaker Technology (Beijing) Co Ltd and Others v CMC Group Plc and Others QBD 24-Jun-2009
The claimants sought the committal of the fourth defendant for contempt having broken his undertaking to the court to provide details of his means.
Held: The terms of the undertaking were not ambiguous and could not be read in the way . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 01 May 2022; Ref: scu.236599

Presidents Practice Direction (Applications for Reporting Restriction Orders): 2005

Citations:

[2005] 2 FLR 120

Jurisdiction:

England and Wales

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Lists of cited by and citing cases may be incomplete.

Family, Media, Litigation Practice

Updated: 30 April 2022; Ref: scu.231163

Birminham City Council and Another v Yardley: CA 9 Dec 2004

The litigant was informed before the case that the judge was from the same chambers as counsel for the opposing side.
Held: Such a litigant if he wanted to complain of bias must do so immediately. The judgment had been delivered only in draft form, but remained effective and binding.

Judges:

Kennedy LJ, Jacob LJ, Gage LJ

Citations:

Times 13-Dec-2004

Jurisdiction:

England and Wales

Citing:

Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 April 2022; Ref: scu.221602

Alltrans Express Limited v CVA Holdings Limited: CA 1984

The plaintiff claimed damages for breach of contract and obtained summary judgment. After a 15 day hearing on the assessment of damages the plaintiffs were awarded andpound;2. The defendant had not paid money into court and the assessor considered the plaintiff to be the successful party and awarded the plaintiffs their costs.
Held: The appeal was allowed. The consequence of the summary judgment was that the plaintiffs were entitled at least to nominal damages and the actual issue between the parties at the hearing was whether the plaintiffs were entitled to more than nominal damages and on that issue the defendant has succeeded. Further it was found that a payment into court of andpound;2 would not have been accepted by the plaintiffs and would not have made any difference to the proceedings so it was wrong to hold that the absence of a payment into court made the plaintiffs the successful party.

Citations:

[1984] 1 All ER 685

Jurisdiction:

England and Wales

Litigation Practice

Updated: 30 April 2022; Ref: scu.219700

Shirayama Shokusan Co Ltd and others v Danovo Ltd: ChD 26 Feb 2004

The court had ordered the parties to conduct a mediation to resolve their dispute. The defendant applied to court that the mediation should be stayed until a named director of the claimant represented the other party.
Held: That director was not himself a named party, and the court had no jurisdiction to make such an order against him.

Judges:

Blackburne J

Citations:

Times 22-Mar-2004, Gazette 01-Apr-2004

Jurisdiction:

England and Wales

Litigation Practice

Updated: 29 April 2022; Ref: scu.194824

In re Asbestos Insurance Coverage: HL 1985

A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court.
Held: The brokers appeal was allowed. The question as to what evidence would and what evidence would not be relevant to an issue in the foreign action is primarily a matter for the foreign court: ‘It would be quite inappropriate, even if it were possible for this House or any English court to determine in advance the matters relevant to the issues before the Californian courts on which each of these witnesses is in a position to give evidence’.
A witness however can simply reply that he does no know if that is the answer to the question. The jurisdiction ‘ is to be construed so as not to permit mere ‘fishing’ expeditions’ and the court would not sanction an order which required production of documents which ‘may or may not exist.’

Judges:

Lord Fraser of Tullybelton

Citations:

[1985] AC 331, [1985] 1 WLR 331, [1985] 1 All ER 716

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975 82

Jurisdiction:

England and Wales

Cited by:

Cited – First American Corporation and others v Sheik Zayed Bin Sultan Al-Nahyan and Others CA 12-May-1998
Letters of Request had been received for the production of document to be used in litigation in the US. It was complained that they were drafted so widely as to amount to a fishing expedition.
Held: ‘an English court must look at the issue of . .
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Tajik Aluminium Plant (Tadaz) v Hydro Aluminium As and others CA 24-Oct-2005
Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I . .
Cited – Financial Services Authority (FSA) and Others v AMRO International Sa and Another CA 24-Feb-2010
The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 April 2022; Ref: scu.188699

Staines v Walsh: ChD 10 Jun 2003

The claimant had obtained an asset freezing order and given undertakings as to his responsibility for the costs. He had provided information about his financial status to support the injunction. The defendant paid the sum at issue into court to discharge the freezing order, when it was discovered that the claimant’s financial standing had changed.
Held: Had there been an application before the court to discharge the order, it would have been granted. A claimant requesting such on order had a continuing obligation to be open with the court and to inform the court of an substantial changes in his assets.

Judges:

Laddies

Citations:

Times 01-Aug-2003, Gazette 31-Jul-2003

Jurisdiction:

England and Wales

Litigation Practice

Updated: 29 April 2022; Ref: scu.185822

O’Kelly v Trusthouse Forte plc: CA 1984

Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one side or the other of some conceptual line drawn by the law is a question of fact – whether an employee was continuously employed. Whether he was employed under a contract of employment was a mixed question of fact and law.

Citations:

[1984] QB 90, [1983] 3 All ER 456, [1983] IRLR 369

Statutes:

Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Cited by:

Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 29 April 2022; Ref: scu.185432

De Bry v Fitzgerald: CA 1990

A request was made for security for costs in a large sum against a foreign resident party: ‘The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the defendants to come back for further security as the matter progressed.’
Lord Donaldson said that since the purpose of an order for security against a plaintiff ordinarily resident outside the jurisdiction, is to have a fund within the jurisdiction which will guarantee that any order for costs in favour of the defendant will be met, ‘it is a complete answer to an application for such an order that a fund already exists, at least if the Court can ensure that the fund will not be dissipated.
Staughton LJ said, in reliance upon Kevorkian v Burney (No 2) [1937] 4 All ER 468, that it is for the plaintiff to show that he has an asset within the jurisdiction which will remain here and then for the defendant to show, if he can, that the asset is worthless or not of sufficient worth to cover the costs.

Judges:

Dillon LJ, Donaldson LJ, Staughton LJ

Citations:

[1990] 1 WLR 552, [1990] 1 All ER 560

Jurisdiction:

England and Wales

Citing:

Cited – Kevorkian v Burney (No 2) CA 1937
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will . .

Cited by:

Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 29 April 2022; Ref: scu.183176

Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd: CA 1986

The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. Allegations were made against the contractors and the architects and also structural engineers. The question then arose whether the amendments raised new claims for the purposes of section 35 of the 1980 Act.
Held: May LJ said: ‘I think it is necessary to adopt a broad approach to these cases. At the stage of the issue of the writ or the service of the statement of claim, in the present context one is not, as I think, concerned with the minutiae of the cause of action which will ultimately have to be investigated at the trial. In the Limitation Act context, one asks in quite broad terms whether the relevant factual situation . . first came about, first was suable upon more than the three, six or twelve years previously. In the res judicata context one has to ask whether the issues in the hypothetical second action were realistically before the court in the hypothetical first action. Merely to rely upon the propositions which I have already quoted from Brunsden v Humphrey in the judgment of Bowen LJ, which was referred to in the judgment of Sankey LJ in Conquer v Boot , that it is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all, (entirely accurate though that is and I would not wish, with respect, to differ at all), nevertheless in the instant context I think that it effectively begs the whole question at the outset.’
and ‘In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed reamendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement of claim in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building, does not necessarily mean in any way that they are constituents of one and the same cause of action.
Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied the law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case.’
and ‘In my opinion, to issue a writ against a party . . when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court.’
Lloyd LJ said: ‘in each case it will depend on the facts whether the damage gives rise to a separate cause of action, or not’ and ‘there may be separate causes of action in relation to the same building, depending upon the facts of the case.’

Judges:

Lloyd LJ and May LJ

Citations:

[1986] 33 BLR 77

Statutes:

Limitation Act 1980 35

Jurisdiction:

England and Wales

Cited by:

Cited – Savings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
Cited – McDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
Lists of cited by and citing cases may be incomplete.

Construction, Limitation, Litigation Practice

Updated: 29 April 2022; Ref: scu.183221

PA Thomas and Co v Mould: QBD 1968

The court urged caution in the grant of an injunction to protect information for which confidence was claimed but where that claim might not succeed. O’Connor J refused to enforce by committal an injunction restraining the defendants from making use of certain confidential information acquired by them during their employment, when the nature of the alleged confidential information had not been specified in the evidence or disclosed to the court.
O’Connor J said: ‘But where parties seek to invoke the power of the court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it.’

Judges:

O’Connor J

Citations:

[1968] 1 All ER 963, [1968] 2 WLR 737, [1968] 2 QB 913

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Marketmaker Beijing Co Ltd and others v CMC Group Plc and others QBD 8-Oct-2004
Interim injunctions had been obtained to prevent the defendants carrying out certain banking transactions.
Held: The remedy sought and the claim was extravagant and unlikely to succeed. The injunctions should be discharged. It was not at all . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice, Contempt of Court

Updated: 29 April 2022; Ref: scu.182810

Harman Pictures N V v Osborne: ChD 1967

The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a marked similarity.
Held: There was a copyright infringement in the screenplay where the similarity in language was slight but the choice of incidents was the same. Goff J discussed the situation which arose where there was an apparent similarity of ideas: ‘It is common ground that there can be an original work entitled to protection although the subject matter is not original, but is for example, as in the present case, some well-known event in history. The precise amount of knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act, 1911, cannot be defined in precise terms: per Lord Atkinson in Macmillan and Co. Ltd. v. Cooper. There is, however, no dispute that Mrs. Woodham-Smith displayed all these qualities in amply sufficient measure and acquired copyright in her book, whilst the plaintiffs’ title to the film rights by assignment is also not disputed. What is much more difficult is whether the plaintiffs have made out a sufficient prima facie case of infringement, or rather intended infringement, and before considering the facts, I must refer at some length to the relevant law.
There is no copyright in ideas or schemes or systems or methods: it is confined to their expression . . .Br />One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history, see Poznanski v. London Film Production Ltd. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources, as was emphasised in the case of Pike v. Nicholas . . ‘
The judge asked: ‘… did John Osborne work independently and produce a script which, from the nature of things, has much in common with the book, or did he proceed the other way round and use the book as a basis, taking his selection of incidents and quotations therefrom, albeit omitting a number and making some alternations and additions, by reference to the common sources and by some reference to other sources?’
Goff J: (quoting from authority) ‘… another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. In determining whether an injunction should be ordered, the question, where the matter of the plaintiff’s work is not original, is how far an unfair or undue use has been made of the work? If, instead of searching into the common sources and obtaining your subject-matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it is an illegitimate use’. And
‘In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law has been precisely stated by Hall V.C. in Hogg v. Scott, .the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man’s labour or, in other words, his property.’

Judges:

Goff J

Citations:

[1967] 2 All ER 324, [1967] 1 WLR 723

Jurisdiction:

England and Wales

Cited by:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Navitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
Cited – Ravenscroft v Herbert ChD 1980
The plaintiff had written a non-fiction book entitled ‘The Spear of Destiny.’ He claimed infringement of copyright by the defendant in his book of fiction called ‘The Spear’. Both books were centered on a spear exhibited in Vienna, said to have been . .
Cited – Baigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 29 April 2022; Ref: scu.182266

In Re Solicitors, Ex Parte Peasegood: QBD 6 May 1993

A request to the court for the removal of a solicitor from the Roll was to be made via Counsel, and not by a litigant in person.

Citations:

Times 06-May-1993, Independent 06-May-1993

Statutes:

Solicitors Act 1974 50 51

Jurisdiction:

England and Wales

Litigation Practice, Legal Professions

Updated: 29 April 2022; Ref: scu.82191

Mercier v Clark and Walker Limited: CA 9 Jul 1997

The claimant sought leave to appeal. After their car had been repaired, there was a dispute, and they stopped their cheque. Proceedings were taken, and they lost. Eventually the garage obtained an order for the sale of the car. Mrs Mercier made an interpleader asserting the car was hers. She sought leave to appeal the failure of that application. Leave was refused.

Citations:

[1997] EWCA Civ 2056

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 28 April 2022; Ref: scu.142453

Rees and Another v Mabco (102) Ltd: CA 11 Dec 1998

Insurers declined to represent an insured facing a claim for damages for secondary liability for asbestos injury. The insured losing by default, the insurers then sought to be joined to defend the action, but still showed no good defence and were refused.
Held: Where an underwriter could demonstrate that there was a defence which carried a real prospect of success which had not been run by the assured, the discretion to permit joinder was available despite the fact that a default judgment had already been obtained.

Citations:

Gazette 27-Jan-1999

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Cited – Humber Work Boats Ltd v ‘Selby Paradigm’, Owners of Mv and others AdCt 23-Jul-2004
The barge had become holed when run aground and then repaired. The repair was faulty, and it sank. The insurers rejected the claim saying that the owners had failed to disclose a report showing areas of thinning of the hull. The underwriters sought . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 28 April 2022; Ref: scu.85933

Presentaciones Musicales Sa v Secunda and Another: CA 29 Nov 1993

A writ was issued within the limitation period applicable to the cause of action. However, the authority of the nominal plaintiff was not obtained within the limitation period.
Held: The adoption by a plaintiff of proceedings issued without his authorisation by his solicitor was acceptable where this occurred within the appropriate limitation period. The raising of proceedings was held not to be a nullity.
Roch LJ considered whether the validity of the ratification of the unauthorised act of commencing proceedings was governed by English law or Panamanian law. Counsel for PMSA had submitted that the question of Mr Van Walsum’s authority was governed by Panamanian law and under that law the acts of the liquidators in May 1991 had put the company and Mr Van Walsum in the position they would have been in had Mr Van Walsum had actual authority to commence proceedings in 1988. Roch LJ disagreed: ‘I do not doubt that if the issue had been whether Mr. Van Walsum had actual authority to instruct Goodman Derrick and Co. to issue proceedings in April 1988, that question could only have been resolved by the court examining the law relating to corporate bodies in the Republic of Panama and, probably, the constitution of the plaintiff company. In the present case there is no dispute, for the purposes of resolving the preliminary issue, that Mr. Van Walsum did not have actual authority in April 1988.
What has to be considered, in my view, is first the effect of the contract apparently entered into between the plaintiff company and Goodman Derrick and of the act of Goodman Derrick in issuing proceedings against the defendants. The law which should apply to that contract and to that act, in my opinion, is the law which has the closest connection with that contract and with that act, namely English law. Dicey and Morris, The Conflict of Laws, 12th ed. (1993), p. 1459, under the heading ‘English Conflicts Rules’ says: ‘Where the agent lacks actual authority from the principal, it seems right in principle, that the law applicable to the contract between the agent and a third party, should determine whether the principal is bound or entitled. In effect in this situation one is asking whether the agent had apparent or ostensible authority to bind the principal . . As between the principal and the agent, the scope of the agent’s authority to bind the principal and to confer rights upon him is necessarily determined by the law which governs their relationship, but third parties must be able to assume, at least where the agent has no actual authority from the principal, that the agents’ authority covers everything which would be covered by the authority of an agent appointed under the law applicable to the contract made between the agent and the third party.’
The correct analysis of the facts of this case, in my judgment, is that the agents whose authority really has to be considered are Goodman Derrick and the act, the validity of which has to be considered is their act of commencing proceedings. Goodman Derrick are English solicitors retained, ostensibly on behalf of a Panamanian company, to perform legal services for that company in England. On that analysis the validating of the act of commencing proceedings by later ratification by those who clearly have authority under Panamanian law to do so on behalf of the plaintiffs must be a matter for English law.
. . Once it is shown by the law of Panama that neither Mr. Van Walsum nor Goodman Derrick were authorised to act, the consequences of that lack of authority are matters for the law of the place where the unauthorised act was performed. Thus . . I conclude that the issue of ratification is governed by English law.’
Dillon LJ said: ‘It is well recognised law that where a solicitor starts proceedings in the name of a plaintiff – be it a company or an individual – without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings. In that event, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured . . The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified . . ‘

Judges:

Roch LJ, Dillon LJ

Citations:

Gazette 12-Jan-1994, Times 29-Nov-1993, [1995] EMLR 118, [1994] 2 All ER 737, [1994] Ch 271, [1994] 2 WLR 660

Jurisdiction:

England and Wales

Cited by:

Applied – Adams and Others v Ford and Others CA 26-Apr-2012
The several claimants had invested in a technology based investment scheme, which they now said was fraudulent. The defendants said that the original, large number of claimants had been reduced, but the lawyers acting for the claimants had issued . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice

Updated: 28 April 2022; Ref: scu.85022

Phelps v Spon-Smith and Co (A Firm): ChD 26 Nov 1999

It was possible to amend a writ to add a cause of action out of time where that cause had been included in the original pleadings served within the limitation period, but which had been omitted by mere error from the writ.

Citations:

Times 26-Nov-1999, Gazette 01-Dec-1999

Statutes:

Limitation Act 1980 25, Rules of the Supreme Cour Order 20

Jurisdiction:

England and Wales

Litigation Practice, Limitation

Updated: 28 April 2022; Ref: scu.84701

Prolaw Ld v Adams (T/A Nigel Adams and Co): CA 4 Jun 1998

Automatically struck out case can continue until the order in that behalf and after successful appeal by virtue of manual directions instead of automatic timetable etc.

Citations:

Gazette 10-Jun-1998, Times 04-Jun-1998

Statutes:

County Court Rules 1981 Order 17 Rule

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.85057

Nikitenko v Leboeuf Lamb Greene and Macrae (A Firm) and Another: ChD 26 Jan 1999

The fundamental issue for the court when considering a mandatory interim order had to be which course of action would cause the least injustice if it was wrong. This might outweigh the usual need to establish a strong case before the order is made.

Citations:

Times 26-Jan-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.84303

MacDonald and Another v Thorn Plc: CA 15 Oct 1999

A court faced an application to set aside a judgment entered into by default of the defendant filing a defence. He agreed that the defendant had a defence on the merits, but because the defendant had been dilatory in dealing with the matter before issue of proceedings, he refused to set aside the default judgment. It was held that the time before proceedings was irrelevant for this purpose, and must be disregarded.

Citations:

Times 15-Oct-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 28 April 2022; Ref: scu.83267

Berkeley Administration Inc v McClelland: CA 1990

There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given on interim injunctions applications, and referred to a note in the Supreme Court Practice and said: ‘These statements of principle justify, in my judgment, the proposition that (subject to any direction to the contrary a court may in a particular case give): (i) advantage can be taken of a cross-undertaking in damages by every defendant who was party to the action when the undertaking was granted; (ii) advantage cannot be taken of the cross-undertaking by persons who are not parties to the action, or, at least, do not become parties until after the order has been discharged.
That leaves outstanding the position regarding defendants who are joined as parties during the currency of the order. That state of affairs does not apply in the present case. I do not regard the correct answer as being clear from the decided cases, although I would, for my part, wish to extend the benefit of a cross-undertaking in damages to all defendants who became parties while the undertaking was in force.’ However: ‘There is, in my judgment, no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole.’

Judges:

Scott VC, Roch and Potter LJJ

Citations:

[1990] 2 QB 407, [1990] I LPr 772, [1990] FSR 381

Jurisdiction:

England and Wales

Cited by:

Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
See Also – Berkeley Administration Inc v Mcclelland and Others CA 13-Aug-1996
Third Party who had been joined in after an injunction was discharged takes no benefit of cross undertaking. . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 April 2022; Ref: scu.180969

Southwark and Vauxhall Water Company v Quick: CA 1878

The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents.
Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: ‘The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk’ Brett LJ: ‘. . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained ‘at the instance’ or ‘at the request’ of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into ‘merely for the purpose of being laid before the solicitor for his advice or for his consideration”.

Judges:

Cockburn CJ and Brett LJ

Citations:

(1878) 3 QBD 315

Jurisdiction:

England and Wales

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180867

Clippens Oil Co Ltd v Edinburgh and District Water Trustees: HL 11 Jun 1907

An interim interdict having been granted upon a Note of suspension and interdict, and the Note having been passed, such interdict subsists until the Note is finally disposed of, i.e., until the Lord Ordinary has pronounced an interlocutor disposing of the Note and the days for reclaiming thereagainst have expired without a reclaiming note being taken, or if a reclaiming note be taken thereagainst, until the Inner House has pronounced judgment upon such reclaiming note.
Where the Court of Session, without setting forth the way in which the figure has been arrived at, has awarded a sum as damages for wrongous interdict, and it does not appear that any wrong principle of law has been applied to the facts of the case, the House of Lords will treat the matter as a jury question and will not disturb the award save on some very strong ground.
Per Lord Collins-‘In my opinion the wrongdoer must take his victim talem qualem, and if the position of the latter is aggravated because he is without the means of mitigating it, so much the worse for the wrongdoer, who has got to be answerable for the consequences flowing from his tortious act. On the other hand the victim, being in fact a poor man, is not entitled to claim damages in respect of lost opportunities which he could not have utilised unless he had been rich.
‘I think the wrongdoer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after events that another course might have saved loss. The loss he has to pay for is that which has actually followed under such circumstances upon his wrong.
I am at a loss to see what bearing’ malice in obtaining the interdict ‘has on the actual facts of this case. It is not essential to the cause of action, which rests on the grant of the interdict on caution, and therefore I think it is not a case for exemplary or punitive as distinguished from compensatory damages.

Judges:

Lord Chancellor (Loreburn), Lord Ashbourne, Lord James of Hereford, Lord Robertson, and Lord Collins

Citations:

[1907] UKHL 669, 44 SLR 669

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 27 April 2022; Ref: scu.622295

Nicolson v Piper: HL 18 Jun 1907

By an agreement duly recorded under the Workmen’s Compensation Act 1897, between an injured workman (appellant), and his employer (respondent), the latter agreed to pay the former a certain sum weekly as compensation during incapacity, or until the weekly payment should be ended, diminished, increased, or redeemed under the Act. Subsequently, in an arbitration at the instance of the employer for the review and termination of the weekly payments, on the ground that the injured man’s incapacity had ceased, the County Court Judge pronounced an order that the agreement ‘be this day terminated, and that the weekly payments to the workman thereunder be ended accordingly.’ At a later period the injured man again became incapable, and in his turn demanded an arbitration for the review and increase of the weekly payment under Schedule 1, section 12.
Held (affirming a judgment of the Court of Appeal) that the application was incompetent, there being no longer any weekly payment in existence capable of being reviewed, the whole matter having been finally terminated by the Judge’s order.

Judges:

Earl of Halsbury, Lords James of Hereford, Robertson, and Atkinson

Citations:

[1907] UKHL 620

Links:

Bailii

Statutes:

Workmen’s Compensation Act 1897

Jurisdiction:

England and Wales

Litigation Practice

Updated: 27 April 2022; Ref: scu.622296

Neilson v R B Wilson and Co: HL 13 May 1907

Form of joint-petition to the House of Lords by the parties in a cause under appeal which is ruled by a decision in another cause given subsequent to the taking of the appeal.

Judges:

Earl of Halsbury, Lord James of Hereford, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 633 – 1, 44 SLR 633 – 1

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 27 April 2022; Ref: scu.622292

Kliers v Schmerler and Another: ChD 30 Apr 2018

First defendant’s submission, made on his behalf by his solicitor, that he should be entitled to cross-examine the claimant and to make further submissions despite the fact that he has been debarred from defending.

Citations:

[2018] EWHC 1350 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 April 2022; Ref: scu.621135

Jones v Great Central Railway Co: HL 2 Apr 1909

By the rules of a trade union its members were entitled to legal assistance in case of unjust dismissal from their employment. The. appellant was a member who had been dismissed from the employment of the railway company. He corresponded with the secretary of the trade union in order to satisfy the union that a solicitor should be employed. In the appellant’s action against the railway company the defenders sought to have the correspondence produced.
Held that the letters were not protected by confidentiality and must be produced.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, James of Hereford, and Shaw.)

Citations:

[1909] UKHL 1039, 46 SLR 1039

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620575

Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd and Others: TCC 15 Jun 2018

Contested applications to amend and strike out pleadings. They raise the issue whether, and in what circumstances, the court should exercise any discretion to grant declaratory relief determining the performance required to satisfy a party’s obligations under a commercial agreement.

Citations:

[2018] EWHC 1494 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620128

TPE v Franks: QBD 10 Jul 2018

The claimant had had judgment in his personal injury claim entered in default of a defence. The defendant applied to set it aside as prima facie defeated by limitation. His application was rejected on the basis that since had had admitted the offence alleged, the limitation period would be extended allowing the claim to succeed.
Held: The defendant’s appeal succeeded. There was no particular requirement as to when a limitation defence might be raised and considered. The prima facie existence of a section 33 defence would not always be determinative in setting aside a default judgment. The onus lay on the claimant to establish that it would be equitable under section 33 to set aside the limit set by section 11. That onus might be heavy, requiring particular justification for why the claim was brought out of time.

Judges:

Julian Knowles J

Citations:

[2018] EWHC 1765 (QB), [2018] WLR(D) 433

Links:

Bailii, WLRD

Statutes:

Civil Procedure Ruls 13.3, Limitation Act 1980

Jurisdiction:

England and Wales

Limitation, Litigation Practice

Updated: 25 April 2022; Ref: scu.620090

PJSC Commercial Bank Privatbank v Kolomoisky and Others: ChD 24 Jul 2018

The court was asked whether various payments made by the First Defendant (‘the respondent’) or corporate bodies that he controls required the prior consent of the Claimant (‘the applicant’) or permission from the Court, or alternatively fell with the scope of the ‘ordinary and proper course of business’ exception to the freezing order that has been made against the respondent.

Judges:

Fancourt J

Citations:

[2018] EWHC 1910 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.620097

Graigola Merthyr Co Ltd v Swansea Corporation: HL 1929

The Act of 1893 provided that a successful defendant should be entitled to costs as between solicitor and client in an action in respect of ‘any act done in the pursuance, or execution, or intended execution of any Act of Parliament or of any public duty or authority’
Held: This applied also to a quia timet action, where the action of the defendant, was anticipated but has not been actually completed.

Citations:

[1929] AC 344, (1929) 26 LJ Ch 233, (1929) 140 LT 505, (1929) 93 JP 121, (1929) 45 TLR 219, (1929) 73 Sol Jo 109, (1929) 27 LGR 243

Statutes:

Public Authorities Protection Act 1893

Jurisdiction:

England and Wales

Citing:

See Also – Graigola Merthyr Co Ltd v Swansea Corporation (No 2) 1928
The plaintiffs owned two collieries, worked as one. The defendant owned an adjacent reservoir, constructed in pursuance of a special Act, incorporating sections from the Waterworks Clauses Act 1847. Wanting to take their seams under the reservoir, . .
Appeal from – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Earlier Proceedings – Graigola Merthyr Co Ltd v Swansea Corporation 1926
In cases involving expert evidence only two experts are to be heard on each side, unless the judge is satisfied that by reason of special circumstances justice cannot be done without hearing further expert evidence. This rule does not exclude either . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 25 April 2022; Ref: scu.619993

Personal Management Solutions Ltd and Another v Brake Bros Ltd and Others: CA 12 Jul 2018

Interlocutory appeal raising the question whether successful claimants who have obtained a judgment on liability can ‘expand’ their claim on an assessment of damages.

Citations:

[2018] EWCA Civ 1635

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 25 April 2022; Ref: scu.619395

Glaxo Wellcome Uk Ltd (T/A Allen and Hanburys) and Another v Sandoz Ltd and Others: ChD 12 Jun 2018

Application made by the claimants seeking orders concerning the defendants’ disclosure and relating to a notice to admit served by the claimants.

Judges:

Marsh CM

Citations:

[2018] EWHC 1626 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Intellectual Property

Updated: 24 April 2022; Ref: scu.618979

Tuson v Murphy: CA 22 Jun 2018

The claimant won her personal injury case, but appealed from an order to pay the defendant’s costs after she had failed to declare her attempt to begin a business.
Held: The Claimant’s modest attempts to run a playgroup did not amount to evidence that the Claimant’s disability was fabricated. The defendant’s offer had been a straightforward Part 36 offer made with full knowledge of the facts complained of. The judge’s order was flawed, and the appeal succeeded.

Citations:

[2018] EWCA Civ 1461

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 24 April 2022; Ref: scu.618836

Hayward v Thompson: CA 1981

A later publication by the same defendant can be used to identify the plaintiff in an earlier publication. If the defendant did intend to refer to the plaintiff, it may be enough if the recipient understood it as referring to the plaintiff regardless of how unreasonable or extraordinary it may have been for the recipient to do so.
Lord Denning MR said: ‘whether one or more causes of action are to be included in one verdict or judgment will depend upon the exercise of the trial Judge’s judicial discretion.’ It is the practice of the English courts in defamation actions to favour a single award of damages, even where there is more than one cause of action.
The court should in interpreting a passage, look to the meaning which the ordinary and reasonable reader would give it on a first reading.
Lord Denning considered the use of evidence as to the meaning: ‘Many read the article. In England Sir Peter Scott did so. He said that the words ‘One is a wealthy benefactor of the Liberal party’ conveyed to him Mr. Jack Hayward. They did likewise to a Mrs. Cowper who gave evidence. In the Bahamas Mr. Hayward’s daughter and son-in-law read it and thought it referred to him. But the most telling evidence came from Mr. Hayward himself. He said that in the Bahamas, after the article, the telephone never stopped ringing, day or night, either at home or at the office. He set it out in a contemporary letter from the Bahamas: ‘The telephone has hardly stopped ringing since I returned and reporters from virtually every newspaper have been on the line.’ The most striking incident was that: . . ‘
Sir George Baker said: ‘There are few civil actions in which nothing new emerges in the course of the hearing.’
Sir Stanley Rees answered an argument that it was not open in law in any circumstances to rely upon a subsequent publication in order to provide evidence of a defamatory meaning or of identification in an earlier article. Counsel referred the court hearing that argument to a number of authorities, in which an original publication was of innocent material which only became defamatory upon the publication of subsequent material, submitting that the principle derived from the cited cases was that a writer of innocent matter could not, by reason of facts which came into existence subsequent to the original innocent publication, become liable in damages for libel because the subsequent material attributed a defamatory meaning to the innocent publication, saying: ‘The question we have to consider is whether that well-established principle applies to a case such as the instant one when (1) the original publication is defamatory; (2) when the second publication relied upon explicitly identifies the person defamed; and (3) it is published by the same party who published the original libel.’
The learned judge held that it was open to find that, as from the second publication, the plaintiff had been publicly named as the person referred to in the first article, which was defamatory.

Judges:

Sir George Baker, Lord Denning MR, Sir Stanley Rees

Citations:

[1982] 1 QB 47, [1981] 3 All ER 45

Jurisdiction:

England and Wales

Cited by:

Cited – Wright v Gregson and Others QBD 1-Jul-2010
The defendant denied that the words complained of were bore the defamatory meaning alleged, and asked the court to rule accordingly and to strike out he claim. He complained of comments about his intentions for the use of money raised for charitable . .
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
Cited – Lewis v Commissioner of Police of The Metropolis and Others (Rev 1) QBD 31-Mar-2011
The defendant sought a ruling on the meaning of the words but using section 69(4) of the 1981 Act. The claimant solicitor was acting in complaints as to the unlawful interception of celebrity voicemails by agents of the press. There had been debate . .
Cited – Economou v De Freitas QBD 27-Jul-2016
Failed action for defamation on rape allegations
The claimant had been accused by the defendant’s daughter of rape. He was never charged but sought to prosecute her alleging intent to pervert the course of justice. She later killed herself. The defendant sought to have the inquest extended to . .
Cited – Simon and Others v Lyder and Another PC 29-Jul-2019
(Trinidad and Tobago) The Board was asked as to the well-known conundrum in the common law of defamation, namely the extent to which (if at all) two or more different statements made upon different occasions by the same defendant may be aggregated . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 24 April 2022; Ref: scu.420204

Biogen Plc v Medeva Plc: HL 31 Oct 1996

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

Judges:

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Slynn of Hadley, Lord Hoffmann

Citations:

Times 01-Nov-1996, [1997] RPC 1, [1996] UKHL 18, (1997) 38 BMLR 149

Links:

Bailii

Statutes:

Patents Act 1977 1(1) 72(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Biogen Inc v Medeva Plc CA 28-Nov-1994
The description in a patent application’s specification must be of an invention. . .
Cited – Allmanna Svenska Electriska A/B v The Burntisland Shipbuilding Co Ltd 1952
The question whether an the invention was obvious was ‘a kind of jury question’. As such, an appellate court should be reluctant to disturb it. If it was so obvious, the patent was invalid. . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Asahi Kasei Kogyo KK’s Application HL 1991
The House considered a case involving the issue of enablement of a particular peptide in a patent application.
Held: On the assumed facts that there had been a prior disclosure of the same invention neither the disclosed information nor common . .

Cited by:

Cited – Seb SAa v Societe De’Longhi Spa CA 4-Jul-2003
The claimant’s action for patent infringement had been dismissed on the basis that the patent was invalid for obviousness.
Held: There was material before the judge on which he could properly conclude as he did on the presence of common . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Parker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Applied – Angiotech Pharmaceuticals and Another v Conor Medsystems Inc CA 16-Jan-2007
The appellants challenged a finding that their patent for a vascular stent failed for obviousness.
Held: To overcome a judge’s finding in such a case some error of principle had to be shown. No such error was shown and the appeal failed. . .
Cited – Pozzoli Spa v BDMO Sa and Another CA 22-Jun-2007
The patentee had invented a method for storing CDs. The patentee sought leave to appeal a finding that its patent was invalid, and if successful, to appeal a finding that the defendant’s apparatus was not infringing.
Held: The application for . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
Cited – Sibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Applied – Generics (UK) Ltd and others v H Lundbeck A/S (Costs) PatC 27-Jun-2007
The parties disputed the patentability of an anti-depressant drug Citalopram (Prozac).
Held: the claims were invalid for insufficiency. . .
Cited – H Lundbeck A/S v Generics (UK) Ltd and others CA 10-Apr-2008
The court heard an appeal against a finding that a patent for a chemical compound was invalid for insufficiency.
Held: The appeal succeeded.
Enough information to ‘work the invention’ meant in order to make the product. . .
Cited – Generics (UK) Ltd and others v H Lundbeck A/S HL 25-Feb-2009
Patent properly granted
The House considered the patentability of a chemical product, citalopram made up of two enantiomers, as opposed to the process of its creation, questioning whether it could be new or was insufficient within the 1977 Act.
Held: The appeal . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Regeneron Pharmaceuticals Inc v Kymab Ltd SC 24-Jun-2020
SC Kymab Ltd (‘Kymab’) alleges that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims. The . .
Cited – Warner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another SC 14-Nov-2018
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four . .
Cited – Actavis Group PTC EHF and Others v ICOS Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .
Cited – Shanks v Unilever Plc and Others SC 23-Oct-2019
The claimant appealed from refusal of statutory compensation under the 1977 Act. He had invented a form of pump which was used by his employers, the respondents in the management of diabetes management.
Held: The appeal succeeded: ‘the correct . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Leading Case

Updated: 24 April 2022; Ref: scu.78407

Dulgheriu and Another v London Borough of Ealing: Admn 24 May 2018

The claimant, who had held a vigil outside a local abortion clinic said that a Public Spaces Protection Order made by the defendant to restrict the activities of the protesters was unlawful. She now sought a protective costs order.
Held: The claimant had failed sufficiently to identify the possibly substantial financial resources of a backing organisation, and the protective costs order was refused.

Judges:

Holman J

Citations:

[2018] EWHC 1302 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Costs

Updated: 23 April 2022; Ref: scu.618103

Bass v Ministry of Defence: QBD 5 Jun 2018

Applications brought by the claimants under section 41 of the County Courts Act 1984 for orders transferring their claims from the Central London County Court to the High Court. Such applications are usually straightforward; indeed, they are usually dealt with by consent. But these raise issues concerning the interplay of sections 41 and 42 of the CCA 1984 and the correct interpretation of CPR r 30.3(3). They also touch more generally on the relationship between judges of the High Court and the County Court.

Judges:

Davison M

Citations:

[2018] EWHC 1297 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Civil Procedure Rules, Litigation Practice

Updated: 22 April 2022; Ref: scu.617222

Henry v News Group Newspapers Ltd: QBD 18 Feb 2011

The defendant in this defamnation action sought disclosure from a third party, the claimant’s former employers. In a notorious child murder she said she had been blamed by the defendant for not seeking the child’s placement in care. She said that her requests for this had been turned down by the LA.

Judges:

Tugendhat J

Citations:

[2011] EWHC 296 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Defamation, Litigation Practice

Updated: 22 April 2022; Ref: scu.429737

Malik and Others v Manchester and Salford Magistrates’ Court and Others: CA 21 Feb 2018

The claimants sought to appeal from a refusal of judicial review of a decision to issue search warrants. The court was now asked to consider whether this was a criminal matter so as to disallow any such appeal under the 1981 Act.
Held: The matter now under consideration could not be said to be free standing of the criminal matters, and no appeal could be brought.

Citations:

[2018] EWCA Civ 815

Links:

Bailii

Statutes:

Senior Courts Act 1981 18(1)(a)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 April 2022; Ref: scu.614895

Mohamed and Others v Abdelmamoud and Another: CA 23 Apr 2018

Application to set aside judgment entered in default. The case raises issues as to when a non-party can be said to be ‘directly affected’ by a judgment or order for the purposes of CPR 40.9, which provides: ‘A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.’

Judges:

Longmore, McCombe, Newey LJJ

Citations:

[2018] EWCA Civ 879, [2018] WLR(D) 246

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 April 2022; Ref: scu.614904

St Alban’s Court Ltd v Daldorch Estates Ltd: ChD 24 May 1999

Guidance was given for pre-trial preparation and presentation of skeleton arguments in the Chancery under the new procedures. The court must be given a summary of the case at the start, and core bundles of documents prepared.

Citations:

Times 24-May-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 20 April 2022; Ref: scu.89466

Koza Ltd and Another v Akcil and Others: ChD 16 Nov 2017

Citations:

[2017] EWHC 2889 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Koza Ltd and Another v Akcil and Others CA 18-Oct-2017
Appeal as to jurisdiction in dispute over control of English registered company based in Turkey. . .
See Also – Koza Ltd and Another v Akcil and Others ChD 21-Dec-2016
. .

Cited by:

See Also – Koza Ltd and Another v Akcil and Others ChD 26-Feb-2018
Application to add party out of jurisdiction and for service . .
See Also – Koza Ltd and Another v Akcil and Others ChD 19-Jun-2018
Struggle for control of company . .
See Also – Koza Ltd and Another v Akcil and Others CA 23-May-2019
Whether proposed payments would be in breach of undertakings given as to dealing with assets in impending litigation. . .
See Also – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 April 2022; Ref: scu.599637

Curtis v Sheffield: CA 1882

Lord Jessel MR said: ‘Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the decisions, or there are some other special circumstances to satisfy the Court that it is desirable at once to decide on the future rights. But where all the parties who in any event will be entitled to the property are of age and are ready to argue the case, the reason of the rule departs, and it becomes a bare technicality. The reason of the rule is this, that the Court will not decide on future rights, because until the event happens it does not know who may be interested in arguing the question, and therefore may be shutting out parties who, when the event happens, may be entitled to succeed, but where they are all of age, and every possible party is represented before the Court, as I said before, utility seems to say that there should be a power to determine their rights, as is the case in Scotland and in many other countries.’

Judges:

Jessel MR

Citations:

[1882] 21 ChD

Jurisdiction:

England and Wales

Cited by:

Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 April 2022; Ref: scu.571415

Tetlow v Orela Ltd: 1920

Ord 16, rr. 2 and 11 Ord 16, r 2, provided that, where an action had been commenced in the name of a wrong plaintiff, the court might, if satisfied that it had been so commenced through bona fide mistake and that it was necessary for the determination of the real matter in dispute so to do, order any other person to be substituted. Ord. 16, r. 11, provided that no cause or matter should be defeated by reason of the misjoinder or nonjoinder of parties and that the court might in any cause or matter deal with the matter in controversy so far as regarded the rights and interests of the parties actually before it, and also that the court might at any stage of the proceedings order that the names of any persons improperly joined as plaintiffs or defendants be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined be added.
Held: A non-existent person cannot sue.
Russell J said that rule 2 meant that, where an action had been commenced between two living parties by a living plaintiff and that plaintiff turned out afterwards to be the wrong person, the court could substitute another for him. ‘But it does not justify the court, in creating a plaintiff in an action for the first time’ and the ‘parties’ referred to in rule 11 were living persons, and that that rule did not carry the plaintiff any further. The Rules of 1883 had made no change in the position, which was still as it had been under the Act of 1852.

Judges:

Russell J

Citations:

[1920] 2 Ch 24, [1920] All ER 419

Statutes:

Common Law Procedure Act 1852

Jurisdiction:

England and Wales

Cited by:

Cited – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 April 2022; Ref: scu.571919